REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement, dated as of June 9, 2003 (this
"Agreement"), is by and among MAVERICK TUBE CORPORATION, a Delaware corporation
(the "Company"), and X.X. XXXXXX SECURITIES INC., JEFFERIES & CO., INC., and
XXXXXXX XXXXX & ASSOCIATES, INC. (collectively, the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of June 3, 2003 (the "Purchase Agreement"), by and among the
Company and the Initial Purchasers, which provides for the sale by the Company
to the Initial Purchasers of $100,000,000 aggregate principal amount of the
Company's 4.00% Convertible Senior Subordinated Notes Due 2033 (the "Firm
Notes"), plus up to an additional $20,000,000 aggregate principal amount of the
same which the Initial Purchasers may subsequently elect to purchase pursuant to
the terms of the Purchase Agreement (the "Additional Notes" and together with
the Firm Notes, the "Convertible Notes"). The Convertible Notes are being issued
pursuant to an Indenture dated as of June 9, 2003 between the Company and The
Bank of New York, as trustee (the "Indenture"). The Convertible Notes are
convertible into shares of common stock, par value $0.01 per share of the
Company ("Common Stock"), at the initial conversion rate set forth in the
Offering Memorandum dated June 3, 2003, which was used in connection with the
offering of the Convertible Notes (the "Offering Memorandum"), subject to
adjustment in accordance with provisions of the Indenture.
In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights set forth
in this Agreement for the benefit of the Initial Purchasers and any subsequent
Holder or Holders of the Convertible Notes or Underlying Shares as provided
herein. The execution and delivery of this Agreement is a condition to the
obligations of the several Initial Purchasers to purchase the Firm Notes under
the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following respective meanings:
"Additional Notes" shall have the meaning set forth in the second
introductory paragraph hereto.
"Agreement" shall have the meaning set forth in the first introductory
paragraph hereto.
"Applicable Conversion Price" shall mean, as of any time of
determination, the amount determined by dividing (i) $1,000 by (ii) the
Conversion Rate in effect at that time or, if no Convertible Notes are then
outstanding, the Conversion Rate that would be in effect under the Indenture at
that time if Convertible Notes were then outstanding.
"Business Day" shall mean any day that is not a Saturday, Sunday or a
day on which commercial banks in New York are authorized or required by law to
remain closed.
"Closing Date" shall mean June 9, 2003.
"Common Stock" shall have the meaning set forth in the second
introductory paragraph hereto.
"Company" shall have the meaning set forth in the first introductory
paragraph hereto.
"Controlling Person" shall have the meaning set forth in Section 6
hereof.
"Conversion Rate" shall have the meaning set forth in the Indenture.
"Convertible Notes" shall have the meaning set forth in the second
introductory paragraph hereto.
"Damages Payment Date" shall have the meaning set forth in Section 3(c)
hereof.
"Deferral Period" shall have the meaning set forth in Section 3(b)
hereof.
"Effectiveness Date" shall mean the 180th day after the Closing Date.
"Effectiveness Period" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Firm Notes" shall have the meaning set forth in the second
introductory paragraph hereto.
"Holder" shall mean an Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become owners of Registrable Securities (in each case,
for so long as such successor, assign or direct or indirect transferee owns
Registrable Securities).
"Indemnified Holder" shall have the meaning set forth in Section 6
hereof.
"Indemnified Person" shall have the meaning set forth in Section 6
hereof.
"Indemnifying Person" shall have the meaning set forth in Section 6
hereof.
"Indenture" shall have the meaning set forth in the second introductory
paragraph hereto.
"Initial Filing Deadline" shall mean the 90th day after the Closing
Date.
"Initial Purchasers" shall have the meaning set forth in the first
introductory paragraph hereto.
"Initial Shelf Registration" shall have the meaning set forth in
Section 2(a) hereof.
"Inspector" shall have the meaning set forth in Section 4(n) hereof.
"Liquidated Damages" shall have the meaning set forth in Section 3(a)
hereof.
"Majority Holders" shall mean, as of any time, Holders of a majority of
the Underlying Shares outstanding at that time and constituting Registrable
Securities; provided that: (i) for the purposes of this definition, Holders of
Convertible Notes outstanding as of that time and constituting Registrable
Securities shall be deemed to be Holders of the number of Underlying Shares into
which such Convertible Notes are or would be convertible as of such time; and
(ii) whenever the context indicates that the "Majority Holders" of Registrable
Securities owned by a specified group of Holders is to be determined as of any
time, only those Registrable Securities owned by such Holders as of that time
shall be considered in determining the Majority Holders pursuant to the
foregoing provisions for the purposes of such determination.
"NASD" shall have the meaning set forth in Section 4(q) hereof.
"Offering Memorandum" shall have the meaning set forth in the second
introductory paragraph hereto.
"Person" shall mean an individual, partnership, corporation, limited
liability company, unincorporated association, trust, joint venture or similar
entity, or a government or an agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to such
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
"Purchase Agreement" shall have the meaning set forth in the second
introductory paragraph hereto.
"QIU" shall have the meaning set forth in Section 4(q) hereof.
"Records" shall have the meaning set forth in Section 4(n) hereof.
"Registrable Securities" shall mean all Convertible Notes and all
Underlying Shares upon original issuance thereof and at all times subsequent
thereto until the earliest to occur of (i) a Registration Statement covering
such Convertible Notes and Underlying Shares having been declared effective by
the SEC and such Convertible Notes and Underlying Shares having been disposed of
pursuant to such effective Registration Statement, (ii) such Convertible Notes
and Underlying Shares having been sold in compliance with Rule 144 or could
(except with respect to affiliates of the Company within the meaning of the
Securities Act) be sold in compliance with Rule 144(k), or (iii) such
Convertible Notes and any Underlying Shares ceasing to be outstanding.
"Registration Default" shall have the meaning set forth in Section 3(a)
hereof.
"Registration Statement" shall mean any registration statement of the
Company filed with the SEC pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act, as
such rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
"Rule 144A" shall mean Rule 144A promulgated under the Securities Act,
as such rule may be amended from time to time, or any similar rule (other than
Rule 144) or regulation hereafter adopted by the SEC.
"Rule 415" shall mean Rule 415 promulgated under the Securities Act, as
such rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
"SEC" shall mean the United States Securities and Exchange Commission
or any successor agency or governmental body performing the functions currently
performed by the United States Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"Shelf Registration" shall have the meaning set forth in Section 2(b)
hereof.
"Shelf Registration Statement" shall have the meaning set forth in
Section 2(b) hereof.
"Subsequent Shelf Registration" shall have the meaning set forth in
Section 2(b) hereof.
"TIA" shall mean the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Trustee" shall mean the trustee under the Indenture.
"Underlying Shares" shall mean the shares of Common Stock into which
the Convertible Notes are convertible or that have been issued upon any
conversion of the Convertible Notes into shares of Common Stock.
"Underwritten registration or underwritten offering" shall mean a
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. Shelf Registration.
(a) Shelf Registration. The Company agrees to file as promptly as
practicable (but in any event within 90 days of the Closing Date) with the SEC a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Registrable Securities (the "Initial Shelf
Registration").
The Initial Shelf Registration shall be on Form S-3 or another
appropriate form permitting registration of such Registrable Securities for
resale by Holders in the manner or manners (i) designated by the Holders
(including, without limitation, one or more underwritten offerings) and (ii)
that comply as to form in all material respects with the requirements of the
applicable form and include or incorporate by reference where permitted all
financial statements required by the SEC to be filed therewith. The Company
shall not permit any securities other than the Registrable Securities to be
included in the Initial Shelf Registration or any Subsequent Shelf Registration
(as defined below).
The Company shall use its reasonable best efforts to cause the Initial
Shelf Registration to be declared effective by the SEC under the Securities Act
on or prior to the Effectiveness Date and to keep such Initial Shelf
Registration continuously effective under the Securities Act for a period until
the earliest of (i) the date on which all the Registrable Securities covered by
the Initial Shelf Registration have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration, and (ii) the date on which all
the Registrable Securities (x) held by Persons who are not affiliates of the
Company may be resold pursuant to Rule 144(k) under the Securities Act or (y)
cease to be outstanding (such period being the "Effectiveness Period"), or such
shorter period ending when a Subsequent Shelf Registration covering all the
Registrable Securities has been declared effective by the SEC under the
Securities Act.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration
or any Subsequent Shelf Registration ceases to be effective for any reason at
any time during the Effectiveness Period (other than because of the sale of all
of the securities registered thereunder), the Company shall use its reasonable
best efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 45 days of such cessation
of effectiveness amend the Initial Shelf Registration in a manner to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional "shelf" Registration Statement pursuant to Rule 415 covering all of
the Registrable Securities (a "Subsequent Shelf Registration"). If a Subsequent
Shelf Registration is filed, the Company shall use its reasonable best efforts
to cause the Subsequent Shelf Registration to be declared effective by the SEC
under the Securities Act as soon as practicable after such filing and to keep
such Registration Statement continuously effective until the termination of the
Effectiveness Period or for such shorter period ending when another Subsequent
Shelf Registration has subsequently been declared effective by the SEC under the
Securities Act. As used herein the term "Shelf Registration" means the Initial
Shelf Registration and any Subsequent Shelf Registration and the term "Shelf
Registration Statement" means any Registration Statement filed in connection
with a Shelf Registration.
(c) Supplements and Amendments. The Company shall promptly supplement
and amend the Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably requested by
the Majority Holders of the Registrable Securities covered by such Registration
Statement or by any underwriter of such Registrable Securities.
3. Liquidated Damages.
(a) The Company and the Initial Purchasers agree that the Holders of
Registrable Securities will suffer damages if the Company fails to fulfill its
obligations under Section 2 hereof and that it would not be feasible to
ascertain the extent of such damages with precision. Accordingly, the Company
agrees to pay liquidated damages on the Registrable Securities ("Liquidated
Damages") under the circumstances and to the extent set forth below (each of
which shall be given independent effect; each a "Registration Default"):
(1) if the Initial Shelf Registration is not filed on or prior to
the Initial Filing Deadline, then commencing on the day after the
Initial Filing Deadline, Liquidated Damages shall accrue on the
principal amount of the outstanding Convertible Notes that are
Registrable Securities and on the Applicable Conversion Price of any
outstanding Underlying Shares that are Registrable Securities at a
rate of 0.50% per annum for the first 90 days immediately following
the Initial Filing Deadline and at a rate of 1.00% per annum
thereafter;
(2) if the Initial Shelf Registration is not declared effective
by the SEC on or prior to the Effectiveness Date, then commencing one
day after the Effectiveness Date, Liquidated Damages shall accrue on
the principal amount of the outstanding Convertible Notes that are
Registrable Securities and on the Applicable Conversion Price of any
outstanding Underlying Shares that are Registrable Securities at a
rate of 0.25% per annum for the first 90 days immediately following
the Effectiveness Date and at a rate of 0.50% per annum thereafter;
and
(3) if a Shelf Registration has been declared effective and such
Shelf Registration ceases to be effective or available at any time
during the Effectiveness Period (other than as permitted under Section
3(b) hereof), then Liquidated Damages shall accrue on the principal
amount of the outstanding Convertible Notes that are Registrable
Securities and on the Applicable Conversion Price of any outstanding
Underlying Shares that are Registrable Securities at a rate of 0.25%
per annum for the first 90 days commencing on the day such Shelf
Registration ceases to be effective or available and at a rate of
0.50% per annum thereafter;
provided, however, that Liquidated Damages on the Registrable Securities may not
accrue under more than one of the foregoing clauses (i), (ii) or (iii) for any
given period of time, except that if Liquidated Damages would be payable under
more than one clause above, but at a higher rate per annum under one clause than
under another, then the Liquidated Damages rate shall be the higher rate;
provided, further, that (1) upon the filing of the Shelf Registration as
required hereunder (in the case of clause (a)(i) of this Section 3), (2) upon
the effectiveness of the Shelf Registration as required hereunder (in the case
of clause (a)(ii) of this Section 3), or (3) upon the effectiveness or
availability of a Shelf Registration which had ceased to remain effective or
available (in the case of (a)(iii) of this Section 3), Liquidated Damages on the
Registrable Securities as a result of such clause (or the relevant subclause
thereof), as the case may be, shall cease to accrue. Any Liquidated Damages
payable hereunder shall be subject to the subordination provisions set forth in
Article XV of the Indenture.
(b) Notwithstanding paragraph (a) of this Section 3, the Company shall
be permitted to suspend the effectiveness or availability of a Shelf
Registration for up to 45 consecutive days in any 90 day period, for a total of
not more than 120 days in any period of 12 consecutive months, without paying
Liquidated Damages, if the Company determines, in its reasonable judgment based
upon advice of counsel, that the continued effectiveness and use of the Shelf
Registration would (i) require the disclosure of material information which the
Company has a bona fide business reason for preserving as confidential or (ii)
interfere with any financing, acquisition, corporate reorganization or other
material transaction involving the Company or any of its subsidiaries. Any
period during which the effectiveness or availability of the Shelf Registration
is suspended in accordance with this Section 3(b) is referred to herein as a
"Deferral Period."
(c) So long as Convertible Notes remain outstanding, the Company shall
notify the Trustee within two Business Days after each and every date on which
an event occurs in respect of which Liquidated Damages is required to be paid.
Any amounts of Liquidated Damages due pursuant to (a)(i), (a)(ii) or (a)(iii) of
this Section 3 will be payable in cash semi-annually on each June 15 and
December 15 (each a "Damages Payment Date"), commencing with the first such date
occurring after any such Liquidated Damages commences to accrue, to holders of
record of outstanding Registrable Securities on each preceding June 1 and
December 1, respectively; provided, however, that any Liquidated Damages accrued
with respect to any Convertible Notes or portion thereof called for redemption
on a redemption date or purchased on a purchase date prior to the Damages
Payment Date for such accrued Liquidated Damages shall be paid instead to the
Holder who submitted such Convertible Notes or portion thereof for redemption or
purchase on the applicable redemption date or purchase date, as they case may
be, on such date. For purposes of computing the Liquidated Damages payable on
any Damages Payment Date in respect of any outstanding Underlying Shares that
are Registrable Securities, the date of determination of the Applicable
Conversion Price of such Underlying Shares shall be the Business Day immediately
preceding that Damages Payment Date.
(d) The Trustee shall be entitled, on behalf of the Holders, to seek
any available remedy for the enforcement of this Agreement, including for the
payment of any Liquidated Damages. Notwithstanding the foregoing, the parties
agree that the sole monetary damages payable for a violation of the terms of
this Agreement with respect to which Liquidated Damages are expressly provided
shall be as set forth in this Section 3, in addition to any remedies available
to the Holders under the Indenture. Nothing herein shall preclude a Holder from
pursuing or obtaining specific performance or other equitable relief with
respect to this Agreement.
4. Registration Procedures. In connection with the filing of any
Registration Statement pursuant to and in accordance with Section 2 hereof, the
Company shall effect such registrations to permit the sale of the securities
covered thereby in accordance with the intended method or methods of disposition
thereof, and pursuant thereto and in connection with any Registration Statement
filed by the Company hereunder the Company shall:
(a) Prepare and file with the SEC on or prior to the Initial Filing
Deadline, a Registration Statement or Registration Statements as prescribed by
Section 2 hereof, and use its reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; provided, however, that before filing any Registration Statement or
Prospectus or any amendments or supplements thereto (other than any
post-effective amendment to any Registration Statement or supplement to any
Prospectus filed solely pursuant to the third sentence of the penultimate
paragraph of Section 4 hereof), the Company shall furnish to and afford the
Holders of the Registrable Securities covered by such Registration Statement and
the managing underwriters, if any, a reasonable opportunity to review copies of
all such documents proposed to be filed (other than documents filed with the SEC
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act that are
deemed incorporated by reference in such Registration Statement or Prospectus),
in each case, where possible, at least five Business Days prior to such filing,
or such later date as is reasonable under the circumstances. The Company shall
not file any Registration Statement or Prospectus or any amendments or
supplements thereto if the Majority Holders of the Registrable Securities
covered by such Registration Statement or the managing underwriters, if any,
shall reasonably object.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness Period;
cause the related Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant to Rule
424 (or any similar provisions then in force) promulgated under the Securities
Act; and comply with the provisions of the Securities Act and the Exchange Act
applicable to it with respect to the disposition of all securities covered by
such Registration Statement as so amended or in such Prospectus as so
supplemented. Subject to Section 3(b) hereof, the Company shall be deemed not to
have used its reasonable best efforts to keep a Registration Statement effective
during the Effectiveness Period if it voluntarily takes any action that would
result in selling Holders of the Registrable Securities covered thereby not
being able to sell such Registrable Securities during that period unless such
action is required by applicable law or unless the Company complies with this
Agreement, including without limitation the provisions of Section 4(k) hereof.
(c) Notify the selling Holders of Registrable Securities and the
managing underwriters, if any, promptly (but in any event within two Business
Days), (i) when a Prospectus or any prospectus supplement or post-effective
amendment has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act (including in such notice a written statement that any Holder
may, upon request, obtain, at the sole expense of the Company, one conformed
copy of such Registration Statement or post-effective amendment including
financial statements and schedules, documents incorporated or deemed to be
incorporated by reference and exhibits), (ii) of the issuance by the SEC of any
stop order suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus or the
initiation of any proceedings for that purpose, (iii) of the happening of any
event, the existence of any condition or any information becoming known that
makes any statement made in such Registration Statement or related Prospectus or
any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any changes in or
amendments or supplements to such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the Prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading and (iv) of the
Company's determination that a post-effective amendment to a Registration
Statement would be appropriate.
(d) Use its reasonable best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus and, if any such order is
issued, to use its reasonable best efforts to obtain the withdrawal of any such
order at the earliest possible moment.
(e) If requested by the managing underwriter or underwriters (if any)
or the Majority Holders of the Registrable Securities being sold in connection
with an underwritten offering (i) promptly incorporate in a prospectus
supplement or post-effective amendment such information as the managing
underwriter or underwriters (if any) or such Holders reasonably determine is
necessary to be included therein, (ii) make all required filings of such
prospectus supplement or such post-effective amendment as soon as reasonably
practicable after the Company has received notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment and (iii)
supplement or make amendments to such Registration Statement.
(f) Furnish to each selling Holder of Registrable Securities, a single
counsel to such Holders (chosen in accordance with Section 5(b) hereof) and each
managing underwriter, if any, at the sole expense of the Company, one conformed
copy of the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and schedules,
and, if requested, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits.
(g) Deliver to each selling Holder of Registrable Securities, a single
counsel to such Holders (chosen in accordance with Section 5(b) hereof) and the
underwriters, if any, at the sole expense of the Company, as many copies of the
Prospectus (including each form of preliminary prospectus), each amendment or
supplement thereto, any documents incorporated by reference therein and such
other documents as such Persons may reasonably request in order to facilitate
the sale or other disposition of the Registrable Securities thereunder; and,
subject to the final two paragraphs of this Section 4, the Company hereby
consents to the use of such Prospectus and each amendment or supplement thereto
by each of the selling Holders of Registrable Securities, and any underwriters,
agents and dealers, in connection with the offering and sale of the Registrable
Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its
reasonable best efforts to register or qualify, to the extent required by
applicable law, and to cooperate with the selling Holders of Registrable
Securities and the managing underwriter or underwriters, if any, in connection
with the registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities or offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any selling Holder, or the managing underwriter or underwriters, if any,
reasonably request; provided, however, that where Registrable Securities are
offered other than through an underwritten offering, the Company agrees: (i) to
cause the Company's counsel to perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this Section
4(h); and (ii) to keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective and do any and all other acts and things that may be
reasonably necessary or advisable to enable each Holder to complete the
disposition of Registrable Securities owned by such Holder and covered by the
applicable Registration Statement in each such jurisdiction; provided, however,
that the Company shall not be required to (A) qualify generally to do business
in any jurisdiction where it is not then so qualified, (B) take any action that
would subject it to general service of process in any such jurisdiction where it
is not then so subject or (C) subject itself to taxation in excess of a nominal
dollar amount in any such jurisdiction where it is not then so subject.
(i) Cooperate with the selling Holders of Registrable Securities and
the managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold, which certificates shall not bear any restrictive legends and shall be
in a form eligible for deposit with The Depository Trust Company; and enable
such shares of Registrable Securities to be in such denominations and registered
in such names as the managing underwriter or underwriters, if any, or Holders
may reasonably request.
(j) Use its reasonable best efforts to cause the Registrable Securities
covered by any Shelf Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be reasonably necessary
to enable the seller or sellers thereof or the underwriter or underwriters, if
any, to consummate the disposition of such Registrable Securities, except as may
be required solely as a consequence of the nature of such selling Holder's
business, in which case the Company will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of such
approvals.
(k) Upon the occurrence of any event contemplated by paragraph
4(c)(ii), 4(c)(iii) or 4(c)(iv) hereof, as promptly as practicable give notice
to suspend the availability in the Registration Statement as contemplated by
Section 3(b) hereof and, subject to Section 3(b) hereof, prepare and (subject to
Section 4(a) hereof) file with the SEC, at the sole expense of the Company, a
supplement or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder, any such Prospectus will 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, in the light of the
circumstances under which they were made, not misleading.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Securities, (i) provide the Trustee with
certificates for the Registrable Securities in a form eligible for deposit with
The Depository Trust Company and (ii) provide a CUSIP number for the Registrable
Securities.
(m) In connection with any underwritten offering of Registrable
Securities pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of securities similar to the
Registrable Securities and take all such other actions as are reasonably
requested by the managing underwriter or underwriters (including those requested
by the Holders of a majority of the Registrable Securities being sold) in order
to expedite or facilitate the registration or the disposition of such
Registrable Securities and, in such connection: (i) make such representations
and warranties to, and covenants with, the Holders and underwriters with respect
to the business of the Company and its subsidiaries (including any acquired
business, properties or entity, if applicable) 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 of securities similar to the Registrable
Securities and confirm the same in writing if and when requested; (ii) obtain
the written opinion of counsel to the Company and written updates thereof in
form, scope and substance reasonably satisfactory to the Holders and such
managing underwriter or underwriters and their respective counsel, addressed to
each selling Holder and the underwriters covering the matters customarily
covered in opinions requested in underwritten offerings of securities similar to
the Registrable Securities and such other matters as may be reasonably requested
by the Holders and such managing underwriter or underwriters; (iii) obtain "cold
comfort" letters and updates thereof in form, scope and substance reasonably
satisfactory to the managing underwriter or underwriters from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements and
financial data are, or are required to be, included or incorporated by reference
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 of
securities similar to the Registrable Securities; and (iv) deliver such
documents and certificates as may be reasonably requested by the Holders of a
majority of Registrable Securities being sold or the managing underwriter or
underwriters, and which are customarily delivered in underwritten offerings, to
evidence the continued validity of the representations and warranties of the
Company made pursuant to clause (i) above and as permitted by the Statement on
Auditing Standards No. 72. The above shall be done as and to the extent required
by such underwriting agreement.
(n) Make available for inspection by any selling Holder of such
Registrable Securities being sold, any underwriter participating in any such
disposition of Registrable Securities, if any, and any attorney, accountant or
other agent retained by any such selling Holder, or underwriter (collectively,
the "Inspectors"), at the offices where normally kept, during reasonable
business hours at such time or times as shall be mutually convenient for the
Company and the Inspectors as a group, all financial and other records,
pertinent corporate documents and instruments of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably necessary to
enable the Inspectors to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the Company and its
subsidiaries to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement. If the Company
determines, in good faith, that certain Records are confidential and so notifies
the Inspectors in writing, the Company need not disclose such confidential
Records to any Inspector unless such Inspector signs a confidentiality agreement
reasonably satisfactory to the Company, which agreement shall provide that: (i)
such confidential Records may be disclosed by the Inspector if (A) the
disclosure of such Records is necessary to avoid or correct a material
misstatement or material omission in such Registration Statement, (B) the
release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction, (C) disclosure of such information is, in the
opinion of counsel for any Inspector, necessary or advisable in connection with
any action, claim, suit or proceeding, directly involving or potentially
involving such Inspector and arising out of, based upon, relating to, or
involving this Agreement or any transactions contemplated hereby or arising
hereunder or (D) the information in such Records has been made generally
available to the public other than through the acts of such Inspector; and (ii)
prior notice shall be provided as soon as practicable to the Company of the
potential disclosure of any information by such Inspector pursuant to clause (B)
or (C) of this sentence to permit the Company to obtain a protective order (or
waive the provisions of this paragraph (n)). Each Inspector shall take such
actions as are reasonably necessary to protect the confidentiality of such
information (if practicable) to the extent such actions are otherwise not
inconsistent with, an impairment of or in derogation of the rights and interests
of the Holder or any Inspector, unless and until such information in such
Records has been made generally available to the public other than as a result
of a breach of this Agreement.
(o) Provide (i) the Holders of the Registrable Securities to be
included in such Registration Statement and not more than one counsel for all
the Holders of such Registrable Securities chosen in accordance with Section
5(b) hereof, (ii) 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(11) of the Securities Act), if any,
thereof, (iii) the sales or placement agent, if any, thereof, and (iv) one
counsel for such underwriters or agents, reasonable opportunity to participate
in the preparation of such Registration Statement, each Prospectus included
therein or filed with the SEC, and each amendment or supplement thereto.
(p) Comply with all applicable rules and regulations of the SEC 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 Securities 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) Cooperate with each seller of Registrable Securities covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the National Association of
Securities Dealers, Inc. (the "NASD"), including, if the Conduct Rules of the
NASD or any successor thereto as amended from time to time so require, engaging
a "qualified independent underwriter" ("QIU") as contemplated therein and making
Records available to such QIU as though it were a participating underwriter for
the purposes of Section 4(n) hereof and otherwise applying the provisions of
this Agreement to such QIU (including indemnification) as though it were a
participating underwriter.
(r) Cause the Indenture to be qualified under the TIA not later than
the effective date of the first Registration Statement relating to the
Registrable Securities; and in connection therewith, cooperate with the Trustee
and the Holders of the Registrable Securities to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in accordance
with the terms of the TIA; and execute, and use its reasonable best efforts to
cause the Trustee to execute, all documents as may be required to effect such
changes and all other forms and documents required to be filed with the SEC to
enable the Indenture to be so qualified in a timely manner.
(s) Use its reasonable best efforts to take all other steps necessary
or advisable to effect the registration of the Registrable Securities covered by
a Registration Statement contemplated hereby.
(t) Use its reasonable best efforts to cause the Underlying Shares to
be listed on the New York Stock Exchange.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company a completed
Notice and Questionnaire in substantially the form attached to the Offering
Memorandum and such other information regarding such seller and the distribution
of such Registrable Securities as the Company may, from time to time, reasonably
request to the extent necessary or advisable to comply with the Securities Act.
The Company may exclude from such registration the Registrable Securities of any
seller if such seller fails to furnish such Notice and Questionnaire and such
information within 20 Business Days after receiving such request. From and after
the date a Shelf Registration Statement is declared effective under the
Securities Act, the Company shall, as promptly as practicable after the date a
Notice and Questionnaire is delivered, and in any event within five Business
Days after such date, if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration Statement or prepare and, if
required by applicable law, file a supplement to the related Prospectus or a
supplement or amendment to any document incorporated therein by reference or
file any other document required by the SEC so that the Holder delivering such
Notice and Questionnaire is named as a selling securityholder in the Shelf
Registration Statement and the related Prospectus in such a manner as to permit
such Holder to deliver such Prospectus to purchasers of Registrable Securities
in accordance with applicable law and, if the Company shall file a
post-effective amendment to the Registration Statement, the Company shall use
its reasonable best efforts to cause such post-effective amendment to be
declared effective under the Securities Act as promptly as practicable;
provided, that if such Notice and Questionnaire is delivered during a Deferral
Period, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions required pursuant to this sentence as
if such Holder had delivered such Notice and Questionnaire on the date of the
expiration of the Deferral Period. Each seller as to which any Shelf
Registration is being effected agrees to furnish promptly to the Company all
information required to be disclosed so that the information previously
furnished to the Company by such seller is not materially misleading and does
not omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the circumstances
under which they were made.
Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon actual receipt of any notice from the Company
of the happening of any event of the kind described in Section 4(c)(ii),
4(c)(iii) or 4(c)(iv) hereof, or upon the suspension of the availability of the
Registration Statement as contemplated by Section 3(b) hereof, such Holder will
forthwith discontinue disposition of such Registrable Securities covered by such
Registration Statement or Prospectus until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 4(k) hereof,
or until it is advised in writing by the Company that the use of the applicable
Prospectus may be resumed.
5. Registration Expenses.
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Company shall be borne by the Company, including,
without limitation, (i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with the NASD
in connection with an underwritten offering and (B) fees and expenses of
compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in connection with Blue
Sky qualifications of the Registrable Securities and determination of the
eligibility of the Registrable Securities for investment under the laws of such
jurisdictions as provided in Section 4(h) hereof)), (ii) printing expenses,
including, without limitation, expenses of printing certificates for Registrable
Securities in a form eligible for deposit with The Depository Trust Company and
of printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, or by the Majority Holders of the
Registrable Securities included in any Registration Statement, (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Company and reasonable fees and disbursements of one special counsel for the
sellers of Registrable Securities (subject to the provisions of Section 5(b)
hereof), (v) fees and disbursements of all independent certified public
accountants referred to in Section 4(m)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) Securities Act liability
insurance, if the Company desires such insurance, (vii) fees and expenses of all
other Persons retained by the Company, (viii) internal expenses of the Company
(including, without limitation, all salaries and expenses of officers and
employees of the Company performing legal or accounting duties), (ix) the
expense of any annual audit, (x) the fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange,
if applicable, and (xi) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, securities
sales agreements and any other documents necessary in order to comply with this
Agreement. Notwithstanding anything in this Agreement to the contrary, each
Holder shall pay all underwriting discounts and brokerage commissions with
respect to any Registrable Securities sold by it.
(b) The Company shall reimburse the Holders of the Registrable
Securities being registered in a Shelf Registration for the reasonable fees and
disbursements of not more than one counsel chosen by the Majority Holders of the
Registrable Securities to be included in such Registration Statement, which
counsel shall be Xxxxx Xxxxx L.L.P., until another firm shall be designated
pursuant to this Section 5(b).
6. Indemnification. The Company agrees to indemnify and hold harmless
(i) the Initial Purchasers, (ii) each Holder, (iii) each Person, if any, who
controls (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) any of the foregoing (any of the Persons
referred to in this clause (iii) being hereinafter referred to as a "Controlling
Person"), (iv) the respective officers, directors, partners, employees,
representatives and agents of any of the Initial Purchasers, the Holders
(including predecessor Holders) or any Controlling Person (Person referred to in
clause (i), (ii), (iii) or (iv) are hereinafter sometimes referred to as
"Indemnified Holders"), from and against any and all losses, claims, damages,
liabilities and judgments (including, without limitation, reasonable legal fees
and other expenses incurred in connection with any suit, action or proceeding or
any claim asserted) caused by any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement or Prospectus, or any
amendment or supplement thereto or any related preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any Holder
furnished to the Company in writing by such Holder expressly for use therein;
provided, however, that the Company shall not be liable to any Indemnified
Holder under the indemnity agreement of this paragraph with respect to any
preliminary prospectus to the extent that any such loss, claim, damage,
liability, judgment or expense of such Indemnified Holder results from the fact
that such Indemnified Holder sold Registrable Securities under a Registration
Statement to a Person as to whom it shall be established that there was not sent
or given, at or prior to the written confirmation of such sale, a copy of the
Prospectus (or of the preliminary prospectus as then amended or supplemented if
the Company shall have furnished such Indemnified Holder with such amendment or
supplement thereto on a timely basis), in any case where such delivery is
required by applicable law and the loss, claim, damage, liability or expense of
such Indemnified Holder results from an untrue statement or omission of a
material fact contained in the preliminary prospectus which was corrected in the
Prospectus (or in the preliminary prospectus as then amended or supplemented if
the Company shall have furnished such Indemnified Holder with such amendment or
supplement thereto, as the case may be, on a timely basis). The Company shall
notify each Indemnified Holder promptly of the institution, threat or assertion
of any claim, proceeding (including any governmental investigation) or
litigation in connection with the matters addressed by this Agreement which
involves the Company or such Indemnified Holder.
Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, officers and each Person who controls the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the
Company to each Holder, but only with reference to such losses, claims, damages
or liabilities that are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in any Registration Statement or Prospectus, or any
amendment or supplement thereto or any related preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person or Persons against whom such indemnity may be sought (each an
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 6 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 6. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 6 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding (whether or not an
Indemnified Person requests the Indemnifying Person to retain counsel as
contemplated by the immediately preceding sentence), any Indemnified Person
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) such
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) such Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to such Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
an Indemnifying Person and an Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that an Indemnifying Person
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Indemnified Holders shall be designated in writing by the
Majority Holders, and any such separate firm for the Company, its directors,
respective officers and such control Persons of the Company shall be designated
in writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
such Indemnifying Person agrees to indemnify any Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested that an Indemnifying Person reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by this paragraph, the
Indemnifying Person shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more
than 30 days after receipt by the Indemnifying Person of such request and (ii)
the Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes (i) an unconditional release of such Indemnified Person from
all liability on claims that are the subject matter of such proceeding and (ii)
does not include any statement as to or any admission of fault, culpability or a
failure to act by or on behalf of an Indemnified Person.
If the indemnification provided for in the first and second paragraphs
of this Section 6 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Indemnifying Person on the one hand and the Indemnified
Person on the other hand pursuant to the Purchase Agreement or from the offering
of the Registrable Securities pursuant to any Shelf Registration or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Indemnifying
Person on the one hand and the Indemnified Person on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and any Indemnified
Holder on the other shall be deemed to be in the same proportion as the total
net proceeds from the initial offering and sale of Convertible Notes (before
deducting expenses) received by the Company bear to the total net proceeds
received by such Indemnified Holder from sales of Registrable Securities giving
rise to such obligations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or such Indemnified
Holder and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
Each of the Company and the Initial Purchasers agrees that it would not
be just and equitable if contribution pursuant to this Section 6 were determined
by pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, in no event shall any Holder
be required to contribute any amount in excess of the amount by which the net
proceeds received by such Holder from the sale of the Registrable Securities
pursuant to a Shelf Registration Statement exceed the amount of damages which
such Holder would have 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 remedies provided for in this Section 6 are not exclusive and shall
not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 6
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Holder or any Person controlling any Holder or by or on behalf of the
Company, its officers or directors or any other Person controlling any of the
Company and (iii) acceptance of and payment for any of the Registrable
Securities.
7. Rules 144 and 144A. The Company covenants that it will file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder in a timely manner
in accordance with the requirements of the Securities Act and the Exchange Act
and, for so long as any Registrable Securities remain outstanding, if at any
time the Company is not required to file such reports, it will, upon the request
of any Holder or beneficial owner of Registrable Securities, make available such
information necessary to permit sales pursuant to Rule 144A under the Securities
Act. The Company further covenants that, for so long as any Registrable
Securities remain outstanding, it will use its reasonable best efforts to take
such further action as any Holder of Registrable Securities may reasonably
request, 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 limitation of the exemptions provided by (a) Rule 144(k) and Rule 144A under
the Securities Act, as such rules may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the SEC. Notwithstanding the
foregoing, nothing in this Section 7 shall be deemed to require the Company to
register any of its securities pursuant to the Exchange Act.
8. Underwritten Registrations. If any of the Registrable Securities
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Majority Holders of the Registrable
Securities to be included in such offering and be reasonably acceptable to the
Company.
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (a) 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 (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as of the date
hereof, and the Company shall not, after the date of this Agreement, enter into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof. The Company has not entered and will not enter into any
agreement with respect to any of its securities that will grant to any Person
piggyback registration rights with respect to a Registration Statement, except
to the extent any existing right has heretofore been validly waived.
(b) Adjustments Affecting Registrable Securities. The Company shall
not, directly or indirectly, take any action with respect to the Registrable
Securities as a class that would adversely affect the ability of the Holders to
include such Registrable Securities in a registration undertaken pursuant to
this Agreement.
(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, other than with the prior written consent of the Company and the Majority
Holders; provided, however, that Section 6 hereof and this Section 9(c) may not
be amended, modified or supplemented without the prior written consent of the
Company and each Holder (including, in the case of an amendment, modification or
supplement of Section 6 hereof, any Person who was a Holder of Registrable
Securities disposed of pursuant to any Registration Statement). Notwithstanding
the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
Registrable Securities are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect, impair, limit or compromise the
rights of other Holders may be given by the Majority Holders of the Registrable
Securities being sold by such Holders pursuant to such Registration Statement.
Each Holder shall be bound by any such amendment, modification, supplement,
waiver or consent effected pursuant to this Section 9(c), whether or not any
notice, writing or marking indicating such amendment, modification, supplement,
waiver or consent appears on the Registrable Securities or is delivered to such
Holder. Each Holder may waive compliance with respect to any obligation of the
Company under this Agreement as it may apply or be enforced by such particular
Holder.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
(1) if to a Holder (other than an Initial Purchaser), at the most
current address of such Holder set forth on the records of the
security registrar under the Indenture, in the case of Holders of
Convertible Notes, and in the stock ledger of the Company, in the case
of Holders of Underlying Shares.
(2) if to any of the Initial Purchasers:
X.X. Xxxxxx Securities Inc. As Representative of the Initial
Purchasers c/o X.X. Xxxxxx Securities Inc. 000 Xxxx Xxxxxx,
0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Facsimile No.: (212)
622-2071 Attention: Syndicate Department
with copies to:
Xxxxx Xxxxx L.L.P. One Shell Plaza 000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000-0000 Facsimile No.: (000) 000-0000
Attention: Xxx X. Paris, Esq.
(3) if to the Company:
Maverick Tube Corporation 00000 Xxxxxxxx Xxxxx Xxxx Xxxxxxx
Xxxxx Xxxxxxxxxxxx, Xxxxxxxx 00000 Facsimile No.: (636)
733-1675 Attention: Xxxxxx Xxxxx
with copies to:
Gallop, Xxxxxxx & Xxxxxx, X.X. 000 Xxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000 Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a next-day air courier; and when the addressor
receives facsimile confirmation, if sent by facsimile.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
including the Holders; provided, however, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder unless and
except to the extent such successor or assign holds Registrable Securities.
(f) 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.
(g) Headings; Interpretation. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. Unless the context otherwise requires, the words "herein,"
"hereof" and "hereunder" and words of similar import refer to this Agreement as
a whole and not to any single provision of this Agreement, and words in the
singular include the plural and vice versa.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS SITTING IN MANHATTAN, NEW
YORK CITY, THE STATE OF NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage or amount of
Registrable Securities is required hereunder, Registrable Securities held by the
Company or any other obligor on the Registrable Securities or any affiliate (as
such term is defined in Rule 405 under the Securities Act) of the Company or any
such other obligor shall be disregarded in determining whether such consent or
approval was given by the Holders of such required percentage or amount.
(k) Third-Party Beneficiaries. Holders of Registrable Securities are
intended third party beneficiaries of this Agreement, and this Agreement may be
enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Initial Purchasers on
the one hand and the Company on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
MAVERICK TUBE CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxxx
Chief Executive Officer
Confirmed and accepted as of the date first above written:
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the several
Initial Purchasers
By: /s/ Xxxx X'Xxxx
-----------------------------------
Name: Xxxx X'Xxxx
---------------------------------
Title: V.P.
--------------------------------
