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EXHIBIT 99.4
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[Unsecured PIK Notes]
REGISTRATION RIGHTS AGREEMENT
Dated as of March 31, 2000
by and among
▇▇▇▇▇▇ SERVICES CORPORATION
and
EACH SECURITIES HOLDER REFERRED TO HEREIN
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TABLE OF CONTENTS
Page
Section 1. Definitions 2
1.1. Defined Terms 2
Section 2. Demand Registration Rights of Securities Holders 7
2.1. Demand Registration Rights 7
2.2. Determination 8
2.3. Notices; Minimum Registerable Amounts 8
2.4. Discretion of Securities Holder 9
2.5. Allocation Among Initiating Securities Holders 10
2.6. Piggyback Rights of Securities Holders 10
2.7. Limitation on Registration Rights 11
Section 3. Black-Out Periods 11
3.1. Black-Out Periods for Securities Holders 11
Section 4. Agreements Concerning Offerings 12
4.1. Obligations of Securities Holders 12
4.2. Obligations of the Company 12
4.3. Agreements Related to Offerings 14
4.4. Certain Expenses. 16
4.5. Public Reporting; Rule 144 16
4.6. Limitations on Subsequent Registration Rights 17
4.7. Indemnification and Contribution 17
4.8. Underwritten Offerings 24
4.9. Transfer of Rights Under this Agreement; Transfers of Registerable Notes 24
4.10. Termination of Rights 25
Section 5. Sequencing of Public Sale Events 25
5.1. Effective Notice Period 25
5.2. Restrictive Legend on Certificates 25
Section 6. Representations and Warranties of the Company 26
Section 7. Representations and Warranties of the Securities Holders 30
Section 8. Delivery of Comfort Letter and Legal Opinion 32
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Section 9. Miscellaneous 32
9.1. Notices 32
9.2. Amendments and Waivers 33
9.3. Termination 33
9.4. Survival of Representations and Warranties 33
9.5. Headings 33
9.6. Counterparts 33
9.7. GOVERNING LAW 34
9.8. No Inconsistent Agreements 34
9.9. Severability 34
9.10. ENTIRE AGREEMENT 34
9.11. No Required Sale 34
EXHIBITS
Exhibit A - Securities Holders Questionnaire 36
Exhibit B - Supplemental Addendum 42
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of March 31, 2000, by
and among ▇▇▇▇▇▇ SERVICES CORPORATION, a corporation organized under the laws of
the State of Delaware (the "Company"), and each SECURITIES HOLDER (as defined in
subsection 1.1).
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W I T N E S S E T H:
WHEREAS, on June 25, 1999 the Company, formerly known as ▇▇▇▇▇▇
Services (Delaware) Inc., filed a voluntary petition for relief under Chapter 11
of title 11 of the United States Code (as amended, the "Bankruptcy Code") with
the United States Bankruptcy Court for the District of Delaware (the "Bankruptcy
Court"). On November 30, 1999, the Bankruptcy Court entered an Order confirming
the First Amended Joint Plan of Reorganization of ▇▇▇▇▇▇ Services (Delaware),
Inc. et al., dated as of September 21, 1999 (the "Plan"); and
WHEREAS, the Plan provides that the Company shall enter into a
registration rights agreement with certain of its shareholders.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, the parties hereto hereby agree as follows:
Section 1. Definitions.
1.1. Defined Terms. (a) As used in this Agreement, the terms
defined in the caption and the recitals shall have the meanings set forth
therein, and the following terms shall have the following meanings:
"affiliate" shall have the meaning ascribed thereto in Rule
12b-2 under the Exchange Act as in effect on the date hereof.
"Agreement" shall mean this Registration Rights Agreement, as
amended, supplemented or otherwise modified from time to time.
"AREP" shall mean American Real Estate Holdings, L.P..
"Canadian Prospectus" shall mean a Preliminary Prospectus or
Prospectus, as applicable, in respect of which a receipt has been
issued by the Canadian Securities Authority in each of the provinces of
Canada in which the document has been filed.
"Canadian Securities Authorities" shall mean the securities
regulatory authorities in each of the provinces of Canada, and
"Canadian Securities Authority" shall mean any one of the Canadian
Securities Authorities.
"Canadian Securities Laws" shall mean the securities
legislation of each of the provinces of Canada and the respective
regulations thereunder and the published rules, policy statements,
blanket rulings, orders, notices or national instruments applicable
therein.
"Canadian Shelf Procedures" shall mean the procedures
contemplated by National Policy 47 of the Canadian Securities
Administrators for the distribution of securities of
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eligible issuers under the prompt offering qualification system, as the
same may be amended or superseded from time to time.
"Commission" shall mean the United States Securities and
Exchange Commission or any successor thereto.
"Demand Registration" shall mean any Registration and/or
Qualification of Registerable Notes pursuant to a Registration
Statement filed by the Company in accordance with the provisions of
subsection 2.2.
"Effective Date" shall mean March 31, 2000, being the date on
which the Plan became effective, as provided therein. Notwithstanding
that this Agreement is expressed to be dated as of March 31, 2000, it
is agreed that this Agreement shall be deemed to be delivered on and
take effect as and from the Closing Date, as that term is defined in
the Secured PIK/Term Credit Agreement.
"Effective Notice Period" shall have the meaning assigned to
such term in subsection 6.1.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, or any successor legislation thereto.
"Exit Facility" shall mean the Exit Facility, dated as of
March 31, 2000, among the Company, the Subsidiaries of the Company
party thereto, Foothill Capital Corporation, as arranger and
administrative agent, and the lenders party thereto.
"First Phase" shall mean the period of time commencing on the
Effective Date and ending on the date that is the earlier of (a) the
date on which the Company is eligible to use Form S-3 to effect a
Registration of Unsecured PIK Notes and (b) the fifteen (15) month
anniversary of the Effective Date.
"Form S-3" shall mean such form of registration statement
under the Securities Act as in effect on the date hereof or any
successor form thereto.
"Form S-4" shall mean such form of registration statement
under the Securities Act as in effect on the date hereof or any
successor form thereto.
"Form S-8" shall mean such form of registration statement
under the Securities Act as in effect on the date hereof or any
successor form thereto.
"Governmental Authority" shall mean any nation or government,
any state or other political subdivision thereof or any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"High River" shall mean High River Limited Partnership.
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"Initiating Securities Holders" shall have the meaning
assigned to such term in subsection 2.3(b).
"Material Adverse Change" shall mean, for purposes of
subsections 2.4(b) and (c), any material adverse change in, or the
occurrence of any event which would reasonably be expected to have a
material adverse effect on, the business, condition (financial or
otherwise) or prospects of the ▇▇▇▇▇▇ Group taken as a whole (it being
understood that a change in general political, financial, banking or
capital market conditions shall not be a "Material Adverse Change"
unless such change has, or would reasonably be expected to have, a
material adverse effect on the ▇▇▇▇▇▇ Group as described above).
"Minimum Registerable Amount" shall mean $1,000 aggregate
principal amount of Unsecured PIK Notes.
"NASD" shall mean the National Association of Securities
Dealers, Inc. or any successor thereto.
"Notice of Offering" shall mean a written notice with respect
to a proposed Securities Holder Public Sale Event pursuant to a Demand
Registration, setting forth (i) the expected maximum and minimum
aggregate principal amount of Registerable Notes proposed to be offered
and sold, (ii) the lead managing underwriter, if applicable and known
and (iii) the proposed method of distribution and the expected timing
of the offering, including whether the proposed offering will be
registered in the United States, qualified for distribution in Canada,
or both.
"Person" shall mean any individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority, limited liability company or
other entity of whatever nature.
"▇▇▇▇▇▇ Group" shall mean the Company together with each
Subsidiary of the Company.
"Piggybacking Notice" shall have the meaning assigned to such
term in subsection 2.6(a).
"Piggybacking Securities Holder" shall have the meaning
assigned to such term in subsection 2.6(a).
"Preliminary Prospectus" shall mean (i) each preliminary
prospectus included in a Registration Statement or in any amendment
thereto prior to the date on which such Registration Statement is
declared effective under the Securities Act, including any prospectus
filed with the Commission pursuant to Rule 424(a) under the Securities
Act or (ii) each preliminary prospectus, as the same may be amended
prior to the issuance of the final receipt by the applicable Canadian
Securities Authority.
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"Prospectus" shall mean each prospectus (i) included in a
Registration Statement at the time it becomes effective (including,
without limitation, a prospectus that discloses information previously
omitted from a prospectus filed as part of an effective Registration
Statement in accordance with Rule 430A), together with any supplement
thereto, as filed with, or transmitted for filing to the Commission
pursuant to Rule 424(b) under the Securities Act or (ii) for which a
receipt is issued by the Canadian Securities Authority in each province
in which such document is filed pursuant to any applicable Canadian
Securities Laws (and including, without limitation, the information
that is permitted to have been omitted by National Policy Statement No.
44 of the Canadian Securities Administrators for the pricing of
securities after the final prospectus is receipted, as the same may be
amended or superseded from time to time).
"Purchase Agreement" shall mean, in connection with any Sale
Event, any written agreement entered into by any Securities Holder
providing for the sale of Registerable Notes.
"Qualification" shall mean the qualification of securities
pursuant to a Canadian Prospectus, for which a final receipt has been
issued by the Securities Regulatory Authority in each province in which
such document is filed.
"Registerable Notes" shall mean with respect to each
Securities Holder (a) the Unsecured PIK Notes issued to such Securities
Holder pursuant to the Plan, and (b) any other Unsecured PIK Notes
issued as interest or other distribution with respect to, or in
exchange for or in replacement of, such Registerable Notes; excluding
in all cases, however, any Registerable Notes from and after the
transfer thereof pursuant to a Registration Statement, a Canadian
Prospectus or Rule 144.
"Registration" shall mean a registration of securities
pursuant to the Securities Act.
"Registration Statement" shall mean (i) any registration
statement (including the Preliminary Prospectus, the Prospectus, any
amendments (including any post-effective amendments) thereto, any
supplements and all exhibits thereto and any documents incorporated
therein by reference pursuant to the rules and regulations of the
Commission or any applicable Canadian securities laws), filed by the
Company in connection with any Public Sale Event with the Commission or
(ii) a Canadian Prospectus filed with any Canadian Securities Authority
any amendments or supplements thereto and any documents, incorporated
by reference therein pursuant to the rules of the applicable Canadian
Securities Authority, which in either case complies with all applicable
requirements of the Securities Act and the rules and regulations of the
Commission thereunder and all applicable Canadian Securities Laws.
"Responsible Officer" shall mean with respect to any Person,
the president, chief executive officer, chief operating officer, chief
financial officer or treasurer of such
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Person.
"Rule 144", shall mean Rule 144 promulgated by the Commission
under the Securities Act, or any successor to such Rule.
"Rule 415" shall mean Rule 415 promulgated by the Commission
under the Securities Act, or any successor to such Rule.
"Rule 424" shall mean Rule 424 promulgated by the Commission
under the Securities Act, or any successor to such Rule.
"Rule 430A" shall mean Rule 430A promulgated by the Commission
under the Securities Act, or any successor to such Rule.
"Second Phase" shall mean the period following the end of the
First Phase and prior to the Termination Date.
"Secured PIK/Term Credit Agreement" shall mean the Secured
PIK/Term Credit Agreement, dated as of March 31, 2000, among the
Company, Canadian Imperial Bank of Commerce, as administrative agent,
and the various lenders from time to time party thereto.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any successor legislation thereto.
"Securities Holder" shall mean each entity set forth on the
signature pages of this Agreement under the heading "SECURITIES
HOLDERS".
"Securities Holder Public Sale Event" shall mean any sale of
Registerable Notes by a Securities Holder pursuant to a Demand
Registration.
"Securities Holder Sale Notice" shall mean a Notice of
Offering to the Company from a Securities Holder requesting the Company
to effect a Demand Registration of Registerable Notes (to which such
Securities Holder is at the time entitled pursuant to subsection 2.1)
and stating whether such Securities Holder is requesting that such
Demand Registration be a Shelf Registration and whether such
Registerable Notes is to be registered for sale in the United States,
Canada or both; provided that if more than one Notice of Offering is
required to aggregate the Minimum Registerable Amount, the term
"Securities Holder Sale Notice" shall refer collectively to all such
Notices of Offering delivered by Securities Holders to the Company in
accordance with subsection 2.3(b).
"Securities Holder's Questionnaire" shall mean the
questionnaire to be provided by each Securities Holder to the Company
in connection with a Securities Holder Public Sale Event, substantially
in the form of Exhibit A, as the same from time to time may be amended,
supplemented or otherwise modified.
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"Shelf Registration" shall mean any Qualification or
Registration of Registerable Notes pursuant to (i) a Registration
Statement filed by the Company in accordance with the provisions of
subsection 2.2 and which provides for the offering of Registerable
Notes to be made on a continuous basis pursuant to Rule 415 or (ii) a
Prospectus filed by the Company in accordance with the provisions of
Section 2.2 and which provides for the Offering of Registerable Notes
to be made on a continuous basis pursuant to national Policy Statement
No. 44 of the Canadian Securities Administrators.
"Subsidiary" shall mean, as to any Person, a corporation,
partnership or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening
of a contingency) to elect the majority of the board of directors or
other managers of such corporation, partnership or other entity are at
that time owned directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise qualified,
all references to a "Subsidiary" or "Subsidiaries" in this Agreement
shall refer to a Subsidiary or Subsidiaries of the Company.
"Supplemental Addendum" shall mean a Supplemental Addendum,
substantially in the form of Exhibit B to this Agreement.
"Termination Date" shall mean, as to each Securities Holder,
the date on which counsel to the Company delivers an opinion in
accordance with subsection 4.10 to such Securities Holder.
"Unsecured PIK Notes" shall mean the Company's 6% Subordinated
Notes due 2010 issued pursuant to the Plan together with any such notes
issued as interest thereon.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
subsection, schedule and exhibit references are to this Agreement.
Section 2. Demand Registration Rights of Securities Holders.
2.1. Demand Registration Rights. At any time prior to the
Termination Date, each Securities Holder shall have the right, subject to
subsections 2.3, 2.4(b) and (c) and 5.1, to request one (1) Demand Registration
on behalf of itself and its affiliates, and the Company shall be obligated to
provide a Demand Registration in response to each such request; provided that
the Company shall be obligated to provide no more than two (2) such Demand
Registrations in the aggregate during the First Phase; provided, further, that,
during the First Phase, if the initial Demand Registration is a Shelf
Registration, the Company shall be obligated to provide only such Shelf
Registration; and provided, further, that High River and AREP shall together
have the right to request a total of two (2) Demand Registrations, allocable
between them as they shall determine in their sole discretion.
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2.2. Determination. Subject to the terms and conditions
hereof, if the Company shall at any time receive one or more Securities Holder
Sale Notices in accordance with subsection 2.3 representing, in the aggregate,
at least the Minimum Registerable Amount, then the Company shall (a) file a
Registration Statement within 45 days, and in any event, but subject to
subsection 5.3(b), make such filing within 60 days (provided that such time
periods shall begin on the date of the Company's receipt of the Securities
Holder Sale Notice which, together with any earlier delivered Securities Holder
Sale Notice, represents the applicable Minimum Registerable Amount), which
Registration Statement shall cover the maximum aggregate principal amount of
Registerable Notes set forth in such Securities Holder Sale Notice, and (b) use
its best efforts to facilitate such Demand Registration as provided herein.
Notwithstanding the foregoing, the Company may delay the filing of (but not its
obligation to expeditiously prepare) any Registration Statement relating to a
Demand Registration for a reasonable period of time (not in excess of 90 days)
if the Board of Directors of the Company reasonably determines to delay such
filing and, within ten (10) days of such determination, the Company provides
each Securities Holder that delivered a Securities Holder Sale Notice with a
certificate signed by the Chairman of the Board of Directors of the Company or
the Chief Executive Officer of the Company stating that, in the good faith
judgment of the Board of Directors of the Company, the filing of such
Registration Statement would adversely affect any material business situation,
transaction or negotiation then contemplated by the Company or materially and
adversely affect the Company. The Company shall promptly give notice to each
such Securities Holder of the end of any delay period under this subsection.
Subject to any extension under subsection 3.1(b), the Company shall keep any
Registration Statement effective for a period of (i) in the case of a Demand
Registration other than a Shelf Registration, until the earlier of (x) the three
(3) month anniversary of the date that the Registration Statement with respect
thereto is declared effective by the Commission or a final receipt is issued by
the applicable Canadian Securities Authority, as applicable, and (y) the date on
which all of the Registerable Notes covered by such Registration Statement have
been sold and (ii) in the case of a Shelf Registration, until the earlier of (x)
two (2) years following the date the Registration Statement with respect thereto
is declared effective by the Commission or a final receipt is issued by the
applicable Canadian Securities Authority, as applicable, and (y) the date on
which all of the Registerable Notes covered by such Registration Statement have
been sold or, in each case, such shorter period if any such Registration is
terminated in accordance with the terms hereof prior to the end of the
applicable period.
2.3. Notices; Minimum Registerable Amounts. (a) Subject to
subsection 2.1, any Securities Holder may send a Securities Holder Sale Notice
to the Company in respect of a Demand Registration. Simultaneously with the
delivery to the Company of a Securities Holder Sale Notice, the Securities
Holder so requesting a Demand Registration shall deliver to each other
Securities Holder a copy of such Securities Holder Sale Notice and such other
information as such Securities Holder may deem appropriate.
(b) Notwithstanding subsection 2.3(a), no Securities Holder
Sale Notice delivered by a Securities Holder shall be effective to require the
Company to provide a Demand
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Registration, unless (i) the aggregate principal amount of Unsecured PIK Notes
represented by such Securities Holder Sale Notice equals or exceeds the Minimum
Registerable Amount or (ii) within twenty (20) days of the delivery of the first
Securities Holder Sale Notice in respect of an aggregate principal amount of
Unsecured PIK Notes that does not equal or exceed the minimum Registerable
Amount one or more additional Securities Holder Sale Notices are delivered by
Securities Holders then entitled to request a Demand Registration pursuant to
subsection 2.1(a) such that the aggregate principal amount of Unsecured PIK
Notes represented by all such Securities Holder Sale Notices (including the
Securities Holder Sale Notice which commenced such twenty (20) day period) is at
least equal to the Minimum Registerable Amount. All Securities Holders
delivering Securities Holder Sale Notices in accordance with the immediately
preceding sentence are hereinafter referred to as the "Initiating Securities
Holders". Subject to subsection 2.4, the delivery of any Securities Holder Sale
Notice pursuant to this subsection 2.3(b), shall be deemed a request by each
Initiating Securities Holder under subsection 2.1 for a Demand Registration,
provided that if all Securities Holder Sale Notices so delivered do not
represent at least the Minimum Registerable Amount, then all such Securities
Holder Sale Notices shall be deemed null and void and shall not constitute a
request for Demand Registration under subsection 2.1 by any Initiating
Securities Holder.
(c) Any Securities Holder Sale Notice may be revised from time
to time prior to the earlier of (i) the execution of the Purchase Agreement, if
any, for such offering and (ii) the effectiveness of the Registration Statement
for, or date of final receipt for the Canadian Prospectus relating to, as
applicable, such offering.
(d) The Company shall promptly provide a Securities Holder
Questionnaire in the case of a Demand Registration, to each Securities Holder
that delivers a Securities Holder Sale Notice in accordance with this subsection
2.3 and each Piggybacking Securities Holder.
2.4. Discretion of Securities Holder. (a) In connection with
any Securities Holder Public Sale Event, subject to the provisions of this
Agreement, the Securities Holder requesting a Demand Registration or the
Initiating Securities Holders owning a majority of the aggregate principal
amount of Registerable Notes that all such Initiating Securities Holders are
seeking to include in such Securities Holder Public Sale Event, in its or their
sole discretion, as the case may be, shall determine whether (i) to proceed
with, withdraw from or terminate such proposed Securities Holder Public Sale
Event, (ii) to enter into one or more Purchase Agreements for such Securities
Holder Public Sale Event and (iii) to take such actions as may be necessary to
close the sale of Registerable Notes contemplated by such offering, including,
without limitation, waiving any conditions to closing such sale which have not
been fulfilled.
(b) Subject to subsection 2.4(c), in the event that the
Securities Holder or the Initiating Securities Holders, as the case may be,
determine(s) pursuant to subsection 2.4(a) not to proceed with a Demand
Registration of Registerable Notes at any time before (i) the Registration
Statement with respect to such Demand Registration has been declared effective
by the Commission or (ii) a final receipt has been issued by the applicable
Canadian Securities Authority for the Canadian Prospectus, as applicable, and
such Securities Holder or Initiating
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Securities Holders, as the case may be, reimburse(s) the Company for all
reasonable fees, costs and expenses in connection therewith, then all Securities
Holder Sale Notices delivered in respect of such Demand Registration shall be
deemed null and void and shall not constitute a request for Demand Registration
under subsection 2.1 by any Securities Holder or Initiating Securities Holders.
(c) If the Securities Holder or the Initiating Securities
Holders, as the case may be, determine(s) pursuant to subsection 2.4(a) not to
proceed with a Demand Registration (i) at any time at the request of the Company
or (ii) as a result of a Material Adverse Change at any time, then, in either
such case, such Securities Holder or Initiating Securities Holders, as the case
may be, will not be required to reimburse the Company for the fees, costs and
expenses in connection with such Demand Registration and all Securities Holder
Sale Notices delivered in respect of such Demand Registration shall be deemed
null and void and shall not constitute a request for Demand Registration under
subsection 2.1 by any Securities Holder or Initiating Securities Holders.
2.5. Allocation Among Initiating Securities Holders. In
connection with any Demand Registration requested by Initiating Securities
Holders in accordance with subsection 2.3, if the lead managing underwriter
selected by such Initiating Securities Holders in accordance with subsection 5.8
with respect to such offering (or, if the offering is not underwritten, if a
financial advisor to such Initiating Securities Holders) determines that
marketing factors require a limitation on the aggregate principal amount of
Registerable Notes to be offered and sold in such offering, there shall be
included in the offering only that aggregate principal amount of Registerable
Notes that such lead managing underwriter or financial advisor, as the case may
be, reasonably and in good faith believes will not jeopardize the success of the
offering, which Registerable Notes shall be allocated among the Initiating
Securities Holders on a pro rata basis based on the aggregate principal amount
of Registerable Notes each such Initiating Securities Holder seeks to include in
such offering.
2.6. Piggyback Rights of Securities Holders. (a) In connection
with any Demand Registration that has been requested by a Securities Holder or
Initiating Securities Holders, as the case may be, in accordance with
subsections 2.1 and 2.3, any other Securities Holder then holding Registerable
Notes (a "Piggybacking Securities Holder") shall be entitled, subject to
subsection 2.6(b), to participate on the same terms and conditions as such
Securities Holder in the Securities Holder Public Sale Event relating thereto
and offer and sell Registerable Notes, respectively, therein as provided in this
subsection 2.6. Any party desiring to so participate shall give written notice
(a "Piggybacking Notice") to the Securities Holder requesting such Demand
Registration and to the Company no later than fifteen (15) days following
receipt of a Securities Holder Sale Notice, of the aggregate principal amount of
Registerable Notes that such Piggybacking Securities Holder then desires to
offer and sell in such Securities Holder Public Sale Event.
(b) The extent to which a Piggybacking Securities Holder may
participate in any Securities Holder Public Sale Event in accordance with
paragraph (a) of this subsection 2.6
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shall be limited to that aggregate principal amount of Registerable Notes that
will not require a reduction in the aggregate principal amount of Registerable
Notes of the Initiating Securities Holders or the Securities Holder requesting
such Demand Registration to be included therein or change in a manner materially
adverse to such Initiating Securities Holders or Securities Holder, as the case
may be, the proposed method of the offering, including, without limitation, the
economic benefits to such Initiating Securities Holders or Securities Holder. If
the lead managing underwriter selected by the Initiating Securities Holders or
the Securities Holder initiating such Securities Holder Public Sale Event (or,
if the offering is not underwritten, a financial advisor to such Initiating
Securities Holders or Securities Holder) determines that marketing factors
require a limitation on the aggregate principal amount of Registerable Notes to
be offered and sold in such offering, there shall be included in the
Registration Statement with respect to such offering only that aggregate
principal amount of Registerable Notes held by such Piggybacking Securities
Holders that such lead managing underwriter or financial advisor, as the case
may be, reasonably and in good faith believes will not jeopardize the success of
the offering, which Unsecured PIK Notes shall be allocated among the
Piggybacking Securities Holders on a pro rata basis based on the aggregate
principal amount of Registerable Notes each such Securities Holder is seeking to
include in such offering.
2.7. Limitation on Registration Rights. Notwithstanding any
other provision of this Agreement, no Person shall have the right to cause the
Company to file a Canadian Prospectus unless such Person provides evidence
reasonably satisfactory to the Company that a proposed trade in securities by
such Person would be a "distribution" as such term is used under applicable
Canadian Securities Laws or would otherwise require the filing of a Canadian
Prospectus with any one or more of the Canadian Securities Authorities under
applicable Canadian Securities Laws and the issuance of a final receipt therefor
from such authorities in order to permit the proposed trade.
Section 3. Black-Out Periods.
3.1. Black-Out Periods for Securities Holders. (a) No
Securities Holder shall offer to sell or sell any Registerable Notes pursuant to
a Demand Registration, and the Company shall not be required to supplement or
amend any Registration Statement or otherwise facilitate the sale of
Registerable Notes pursuant thereto, during the 90-day period immediately
following the receipt by each Securities Holder of a certificate of an
authorized officer of the Company to the effect that the Board of Directors of
the Company has in good faith and for valid business reasons requested that the
Securities Holders refrain from selling Registerable Notes; provided, however,
that the identity of a potential purchaser or purchasers of Registerable Notes
from a Securities Holder shall not constitute a valid business reason. Any
period described in this subsection 3.1(a) during which Securities Holders are
not able to sell Registerable Notes pursuant to a Demand Registration is herein
referred to as a "black-out" period. The Company shall notify each Securities
Holder of the expiration or earlier termination of any "black-out" period (the
nature and pendency of which need not be disclosed during such "black-out"
period).
(b) The period during which the Company is required pursuant
to subsection
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2.2 to keep any Demand Registration effective shall be extended by a number of
days equal to the number of days, if any, of any "black-out" period applicable
to Securities Holders pursuant to this subsection 4.1 occurring during such
period, plus a number of days equal to the number of days during such period, if
any, of any period during which the Securities Holders are unable to sell any
Registerable Notes pursuant to a Demand Registration as a result of the
happening of any event of the nature described in subsection 4.3(c)(ii),
4.3(c)(iii) or 4.3(c)(v).
Section 4. Agreements Concerning Offerings.
4.1. Obligations of Securities Holders. (a) Each Securities
Holder shall, upon the reasonable request of the Company, advise the Company of
the aggregate principal amount of Registerable Notes then held or beneficially
owned by it.
(b) It shall be a condition precedent to the obligations of
the Company to effect a Registration of any Registerable Notes that each
Securities Holder desiring to participate in a Securities Holder Public Sale
Event shall have furnished to the Company a completed Securities Holder's
Questionnaire and such additional information regarding itself, the Registerable
Notes held by it and the intended method of disposition of such securities as
shall be required by law, the Commission or any applicable Canadian Securities
Authority, to effect the Registration of their Registerable Notes and any other
information relating to such Registration.
4.2. Obligations of the Company. Whenever required under this
Agreement to proceed with a Registration of any Registerable Notes, the Company
shall, subject to the terms and conditions of this Agreement, as expeditiously
as reasonably possible:
(a) In accordance with subsection 2.2, prepare and file with
the Commission and/or the applicable Canadian Securities Authority, as
appropriate, a Registration Statement with respect to such Registerable
Notes and use its best efforts to cause such Registration Statement to
become effective and/or a final receipt to be issued with respect to
the Canadian Prospectus.
(b) Prepare and file with the Commission and/or the applicable
Canadian Securities Authority, as appropriate, such amendments
(including post-effective amendments) to such Registration Statement,
supplements to the related Prospectus used in connection with such
Registration Statement, and otherwise use its best efforts, to the end
that such Registration Statement reflects the plan of distribution of
the securities registered thereunder that is included in the relevant
Notice of Offering, if any, in respect of a Demand Registration and,
subject to subsection 2.2, is effective until the completion of the
distribution contemplated by such Registration Statement or so long
thereafter as a dealer is required by law to deliver a Prospectus in
connection with the offer and sale of the Registerable Notes covered by
such Registration Statement.
(c) Notify the Securities Holders selling Registerable Notes,
at any time when
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a Prospectus relating thereto is required to be delivered under the
Securities Act, when the Company becomes aware of the occurrence of any
event, as a result of which the Prospectus included in such
Registration Statement (as then in effect) contains an untrue statement
of material fact or omits to state a material fact necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading, and use its best efforts to prepare and file
promptly, and in any event within ten (10) days, with the Commission
and/or the applicable Canadian Securities Authority, as appropriate, a
supplement or amendment to such Prospectus so that, as thereafter
delivered to purchasers of such Registerable Notes, such Prospectus
will not contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(d) Provide to any Securities Holder requesting to include
Registerable Notes in such Registration Statement and any managing
underwriter participating in any distribution thereof, and to any
attorney, accountant or other agent retained by such Securities Holder
or managing underwriter, reasonable access to appropriate officers and
directors of the Company to ask questions and to obtain information
reasonably requested by any such Person in connection with such
Registration Statement or any amendment thereto, provided, however,
that (i) in connection with any such access or request, any such
requesting Persons shall cooperate to the extent reasonably practicable
to minimize any disruption to the operation by the Company of its
business and (ii) any records, information or documents shall be kept
confidential by such requesting Persons, unless (x) such records,
information or documents are in the public domain or otherwise publicly
available other than through disclosure by such requesting party or (y)
disclosure of such records, information or documents is required by
court or administrative order or by applicable law (including, without
limitation, the Securities Act).
(e) Furnish to the participating Securities Holders, such
number of copies of a Prospectus, including a Preliminary Prospectus,
in conformity with the requirements of the Securities Act and/or
applicable Canadian Securities Laws, and such other documents as they
may reasonably request in order to facilitate the disposition of
Registerable Notes owned by them.
(f) Use its best efforts to register and qualify the
securities covered by such Registration Statement under such other
securities or "Blue Sky" laws of such jurisdictions in the United
States as shall be reasonably requested by the Securities Holders,
provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or
jurisdictions or to make any filing or take any other action which
could subject it to taxation as a result of such filing.
(g) Enter into and perform its obligations under a Purchase
Agreement, if the offering is an underwritten offering, in usual and
customary form, with the managing
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17
underwriter of such underwritten offering; provided, however, that each
Securities Holder participating in such Securities Holder Public Sale
Event shall also enter into and perform its obligations under such
Purchase Agreement so long as such obligations are usual and customary
obligations of selling stockholders in a registered public offering.
4.3. Agreements Related to Offerings. Subject to the terms
and conditions hereof, in connection with any Demand Registration:
(a) The Company will cooperate with any underwriters for, and
the Securities Holders of, the Registerable Notes proposed to be sold
pursuant to a Registration Statement , and will, unless the parties to
the Purchase Agreement otherwise agree, enter into a Purchase Agreement
not inconsistent with the terms and conditions of this Agreement and
containing such other terms and conditions of a type and form
reasonable and customary for companies of similar size and credit
rating (including, but not limited to, such provisions for delivery of
a "comfort letter" and legal opinion as are customary), and take all
such other reasonable actions as are necessary or advisable to permit,
expedite and facilitate the disposition of such Registerable Notes in
the manner contemplated by such Registration Statement in each case to
the same extent as if all the Registerable Notes then being offered
were for the account of the Company.
(b) Neither a Registration Statement nor any amendment or
supplement thereto will be filed by the Company until counsel for the
Initiating Securities Holder or the securities Holder delivering the
relevant effective Securities Holder Sale Notice shall have had a
reasonable opportunity to review the same and each Securities Holder
participating in such Sale Event shall have had a reasonable
opportunity to exercise its rights under subsection 4.2(d) with respect
thereto. No amendment to such Registration Statement naming any
Securities Holder as a selling security holder shall be filed with the
Commission and/or the applicable Canadian Securities Authority, as
applicable, until such Securities Holder shall have had a reasonable
opportunity to review such Registration Statement as originally filed.
Neither such Registration Statement nor any related Prospectus or any
amendment or supplement thereto shall be filed by the Company with the
Commission and/or the applicable Canadian Securities Authority, as
applicable, which shall be disapproved (for reasonable cause) by the
managing underwriters named therein or any participating Securities
Holders within a reasonable period after notice thereof.
(c) The Company will use its reasonable efforts to keep the
Securities Holders informed of the Company's best estimate of the
earliest date on which such Registration Statement or any
post-effective amendment thereto will become effective and/or the
Canadian Prospectus will be receipted and will notify each Securities
Holder and the managing underwriters participating in the distribution
pursuant to such Registration Statement promptly (i) when such
Registration Statement or any post-effective amendment to such
Registration Statement becomes effective and/or when a final receipt is
issued in respect of such Canadian Prospectus, (ii) of any request by
the Commission
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and/or the applicable Canadian Securities Authority, as applicable, for
an amendment or any supplement to such Registration Statement or any
related Prospectus, (iii) of the issuance by the Commission or any
Canadian Securities Authority of any stop order suspending the
effectiveness of such Registration Statement or of any order preventing
or suspending the use of any related Prospectus or the initiation or
threat of any proceeding for that purpose, (iv) of the suspension of
the qualification of any Unsecured PIK Notes included in such
Registration Statement for sale in any jurisdiction or the initiation
or threat of a proceeding for that purpose, (v) of any determination by
the Company that an event has occurred (the nature and pendency of
which need not be disclosed during a "black-out period" pursuant to
subsection 3.1) which makes untrue any statement of a material fact
made in such Registration Statement or any related Prospectus or which
requires the making of a change in such Registration Statement or any
related Prospectus in order that the same will not contain any 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 and otherwise comply with applicable securities laws and
(vi) of the completion of the distribution contemplated by such
Registration Statement if it relates to a Company Sale Event.
(d) In the event of the issuance of any stop order suspending
the effectiveness of such Registration Statement or of any order
suspending or preventing the use of any related Prospectus or
suspending the qualification of any Unsecured PIK Notes included in
such Registration Statement for sale in any jurisdiction, the Company
will use its reasonable best efforts promptly to obtain its withdrawal.
(e) The Company agrees to otherwise use its best efforts to
comply with all applicable rules and regulations of the Commission and
any Canadian Securities Authorities, and make available to its security
holders (within the meaning of Rule 158 under the Securities Act), as
soon as reasonably practicable, but not later than fifteen months after
the effective date of such Registration Statement, an earnings
statement covering the period of at least twelve months beginning with
the first full fiscal quarter after the effective date of such
Registration Statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder.
(f) The Company shall, subject to permitted "black-out"
periods, upon the happening of any event of the nature described in
subsection 4.3(c)(ii), 4.3(c)(iii) or 4.3(c)(v), as expeditiously as
reasonably possible, prepare a supplement or post-effective amendment
to the applicable Registration Statement or a supplement to the related
Prospectus, any document incorporated therein by reference or file any
other required documents and deliver a copy thereof to each Securities
Holder so that, as thereafter delivered to the purchasers of the
Registerable Notes being sold thereunder, 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 light of the circumstances under which they were
made, not misleading and shall
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otherwise comply with all applicable securities laws.
(g) Upon receipt of any notice from the Company of the
happening of any event of the kind described in subsection 4.2(c), each
Securities Holder will immediately discontinue disposition of the
Registerable Notes pursuant to the Registration Statement relating to
such Registerable Notes until such Securities Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by
subsection 4.2(c), or until such Securities Holder has been advised in
writing by the Company that the use of the Prospectus may be resumed
and has received copies of any additional or supplemental filings which
are incorporated by reference therein. If reasonably requested by the
Company, the Securities Holders will, or will request the managing
underwriter or underwriters, if any, to, deliver to the Company all
copies, other than permanent file copies, of the Prospectus covering
the Registerable Notes current at the time of receipt of such notice.
4.4. Certain Expenses. Subject to subsection 2.4(b), the
Company shall pay all fees, disbursements and expenses in connection with the
performance of its obligations hereunder, including, without limitation, all
registration and filing fees, printing expenses, auditors' fees, listing fees,
registrar and transfer agents' fees, reasonable fees and disbursements of
counsel to the Securities Holders (provided that the Company need not pay for
more than the U.S. counsel and/or one Canadian counsel for such Securities
Holders) and counsel for the Company, expenses (including reasonable fees and
disbursements of counsel) of complying with applicable securities or "Blue Sky"
laws and the fees of the NASD or other governing body of any securities exchange
on which the Unsecured PIK Notes is listed in connection with its review of any
offering contemplated in such Registration Statement , but not including
underwriting fees, discounts and commissions.
4.5. Public Reporting; Rule 144. (a) The Company agrees to:
(i) file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act or
the Exchange Act;
(ii) file with any applicable Canadian Governmental
Authorities in a timely manner all documents required of the Company by
such Governmental Authorities and of any securities exchange on which
the securities of the Company are listed or quoted under any applicable
Canadian securities laws; and
(iii) furnish to any Securities Holder forthwith upon request
(A) a written statement by the Company that it has complied with the
current public information and reporting requirements of Rule 144 or
any similar rule or regulation hereafter adopted by the Commission and
the Exchange Act, (B) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents required to
be filed by the Company pursuant to subsections 4.5(a)(i) or
4.5(a)(ii), and (C) such other information as is available to the
Company without unreasonable cost or expense and may be reasonably
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20
requested in connection with availing any Securities Holder of any rule
or regulation of the Commission which permits the selling of any such
securities without Registration or pursuant to such rule or regulation.
(b) During any period in which the Company is not subject to
Section 13 or 15(d) of the Exchange Act, the Company shall, upon the request of
any Securities Holder, make available to such Securities Holder and any
prospective purchaser of Registerable Notes designated by such Securities Holder
the information required by Rule 144(c) in order to permit resales of the
Registerable Notes held by such Securities Holder pursuant to Rule 144.
(c) Any Securities Holder selling Registerable Notes shall
promptly deliver to the Company a copy of any other documentation required to be
filed by such Securities Holder with any Governmental Authority in connection
with such sale, including, with respect to sales under Rule 144, a copy of the
completed Form 144 filed by such Securities Holder with the Commission.
4.6. Limitations on Subsequent Registration Rights. From and
after the date of this Agreement, the Company shall not, without the prior
written consent of Securities Holders owning a majority of the Registerable
Notes held by Securities Holders at such time, enter into any agreement (other
than this Agreement) which would allow any holder or prospective holder of
Unsecured PIK Notes (a) on demand of such holder to cause the Company to effect
a Registration of such securities prior to the second anniversary of the
Effective Date, or (b) to include such securities in any Registration Statement
filed under subsection 2.2 hereof to the exclusion of Registerable Notes that
any Securities Holder desires to include in any such offering.
4.7. Indemnification and Contribution. (a) In connection with
a Demand Registration, provisions substantially in conformity with the following
provisions shall be contained in the related Purchase Agreement unless the
parties to such Purchase Agreement agree otherwise:
(i) The Company shall agree to indemnify and hold harmless
each Securities Holder and each Person, if any, who controls such
Securities Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act against any losses, claims,
damages or liabilities, joint or several, or actions in respect thereof
to which such Securities Holder or controlling Person may become
subject under the Securities Act, or otherwise (collectively,
"Losses"), insofar as such Losses arise out of, or are based upon, any
untrue statement or alleged untrue statement of any material fact
contained in such Registration Statement, any related Preliminary
Prospectus or any related Prospectus, 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 Securities Holder or controlling Person for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such Loss; provided, however, that the
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Company shall not be so liable to the extent that any such Loss arises
out of, or is based upon, an untrue statement or alleged untrue
statement of a material fact or an omission or alleged omission to
state a material fact in said Registration Statement, said Preliminary
Prospectus, said Prospectus or any said amendment or supplement in
reliance upon, and in conformity with, written information furnished to
the Company by or on behalf of a Securities Holder specifically for use
therein. Notwithstanding the foregoing, the Company shall not be liable
in any such case to the extent that any such Loss arises out of, or is
based upon, an untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Prospectus if (A) such
Securities Holder failed to send or deliver a copy of the Prospectus
with or prior to the delivery of written confirmation of the sale of
Registerable Notes to the Person asserting such Loss or who purchased
such Registerable Notes which is the subject thereof if, in either
case, such delivery is required by the Securities Act and (B) the
Prospectus would have corrected such untrue statement or omission or
alleged untrue statement or alleged omission; and the Company shall not
be liable in any such case to the extent that any such Loss arises out
of, or is based upon, an untrue statement or alleged untrue statement
of a material fact or omission or alleged omission to state a material
fact in the Prospectus, if such untrue statement or alleged untrue
statement, omission or alleged omission is corrected in an amendment or
supplement to the Prospectus and if, having previously been furnished
by or on behalf of the Company with copies of the Prospectus as so
amended or supplemented, such Securities Holder thereafter fails to
deliver such Prospectus as so amended or supplemented, prior to or
concurrently with the sale of Registerable Notes to the Person
asserting such Loss or who purchased such Registerable Notes which is
the subject thereof if, in either case, such delivery is required by
the Securities Act. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(ii) Each Securities Holder severally shall agree to indemnify
and hold harmless the Company, each of its officers and directors who
sign the Registration Statement, each other Securities Holder and each
Person, if any, who controls the Company or such other Securities
Holder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act against any Losses to which the Company,
such officers or directors, such other Securities Holder or such
controlling Person may become subject under the Securities Act, or
otherwise, insofar as such Losses arise out of, or are based upon, any
untrue statement or alleged untrue statement of any material fact
contained in such Registration Statement, any related Preliminary
Prospectus or any related Prospectus, 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 the Company, such officers or directors, such other
Securities Holder or such controlling Person for any legal or other
expenses reasonably incurred by them in connection with investigating
or defending any such Loss, in each case to the extent, but only to the
extent, that any such Loss arises out of, or is based upon, an untrue
statement
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22
or alleged untrue statement of a material fact or an omission or
alleged omission to state a material fact in said Registration
Statement, said Preliminary Prospectus or said Prospectus, or any said
amendment or supplement in reliance upon, and in conformity with,
written information furnished to the Company by or on behalf of such
Securities Holder specifically for use therein; provided, however, that
the liability of each Securities Holder on account of the foregoing
shall be limited to an amount equal to the net proceeds of the sale of
Registerable Notes by such Securities Holder in the offering which gave
rise to the liability.
(iii) The Company shall agree to indemnify and hold harmless
each underwriter and each Person, if any, who controls any such
underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act against any Losses to which such
underwriter or controlling Person may become subject under the
Securities Act, or otherwise, insofar as such Losses arise out of, or
are based upon, any untrue statement or alleged untrue statement of any
material fact contained in such Registration Statement, any related
Preliminary Prospectus or any related Prospectus, 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 underwriter or controlling Person for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such Loss; provided, however, that the
Company shall not be so liable to the extent that any such Loss arises
out of, or is based upon, an untrue statement or alleged untrue
statement of a material fact or an omission or alleged omission to
state a material fact in said Registration Statement, said Preliminary
Prospectus or said Prospectus or any said amendment or supplement in
reliance upon, and in conformity with, written information furnished to
the Company by or on behalf of such underwriter specifically for use
therein. Notwithstanding the foregoing, the Company shall not be liable
in any such case to the extent that any such Loss arises out of, or is
based upon, an untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Prospectus if (A) such
underwriter failed to send or deliver a copy of the Prospectus with or
prior to the delivery of written confirmation of the sale of
Registerable Notes to the Person asserting such Loss or who purchased
such Registerable Notes which is the subject thereof if, in either
case, such delivery is required by the Securities Act and (B) the
Prospectus would have corrected such untrue statement or omission or
alleged untrue statement or alleged omission; and the Company shall not
be liable in any such case to the extent that any such Loss arises out
of, or is based upon, an untrue statement or alleged untrue statement
of a material fact or omission or alleged omission to state a material
fact in the Prospectus, if such untrue statement or alleged untrue
statement, omission or alleged omission is corrected in an amendment or
supplement to the Prospectus and if, having previously been furnished
by or on behalf of the Company with copies of the Prospectus as so
amended or supplemented, such underwriter thereafter negligently fails
to deliver such Prospectus as so amended or supplemented, prior to or
concurrently with the sale of Registerable Notes to the Person
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asserting such Loss or who purchased such Registerable Notes which is
the subject thereof if, in either case, such delivery is required by
the Securities Act. This indemnity agreement will be in addition to any
liability which the Company may otherwise have, provided that the
Company shall only be required to provide the indemnification described
in this subsection 4.7(a)(iii) to an underwriter and each Person, if
any, who controls such underwriter if such underwriter agrees to
indemnification provisions substantially in the form set forth in
subsection 4.7(b).
(iv) Each Securities Holder severally shall agree to indemnify
and hold harmless each underwriter and each Person, if any, who
controls such underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any Losses,
joint or several, or actions in respect thereof to which such
underwriter or such controlling Person may become subject under the
Securities Act, or otherwise, insofar as such Losses arise out of, or
are based upon, any untrue statement or alleged untrue statement of any
material fact contained in such Registration Statement, any related
Preliminary Prospectus or any related Prospectus, 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 underwriter or such controlling Person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such Loss, in each case to the extent,
but only to the extent, that any such Loss arises out of, or is based
upon, an untrue statement or alleged untrue statement of a material
fact or an omission or alleged omission to state a material fact in
said Registration Statement, said Preliminary Prospectus or said
Prospectus, or any said amendment or supplement in reliance upon, and
in conformity with, written information furnished to the Company by or
on behalf of such Securities Holder specifically for use therein;
provided that the liability of such Securities Holder on account of the
foregoing shall be limited to an amount equal to the net proceeds of
the sale of Registerable Notes by such Securities Holder in the
offering which gave rise to the liability. Notwithstanding the
foregoing, such Securities Holder shall not be liable in any such case
to the extent that any such Loss arises out of, or is based upon, an
untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus if (A) such underwriter
failed to send or deliver a copy of the Prospectus with or prior to the
delivery of written confirmation of the sale of Registerable Notes to
the Person asserting such Loss or who purchased such Registerable Notes
which is the subject thereof if, in either case, such delivery is
required by the Securities Act and (B) the Prospectus would have
corrected such untrue statement or omission or alleged untrue statement
or alleged omission; and such Securities Holder shall not be liable in
any such case to the extent that any such Loss arises out of, or is
based upon, an untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
in the Prospectus, if such untrue statement or alleged untrue
statement, omission or alleged omission is corrected in an amendment or
supplement to the Prospectus and if, having previously been furnished
with copies of the Prospectus as so amended or supplemented, such
underwriter thereafter negligently fails to deliver such Prospectus as
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so amended or supplemented, prior to or concurrently with the sale of
Registerable Notes to the Person asserting such Loss or who purchased
such Registerable Notes which is the subject thereof if, in either
case, such delivery is required by the Securities Act. No Securities
Holder shall be required to provide the indemnification described in
this subsection 4.7(a)(iv) to an underwriter or any Person who controls
such underwriter if such underwriter has not agreed to indemnification
provisions substantially in the form set forth in subsection 4.7(b).
(v) Promptly after receipt by an indemnified party pursuant to
the indemnification provisions of such Purchase Agreement of notice of
any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to such indemnification provisions, notify
the indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to the indemnified party otherwise than pursuant to the
indemnification provisions of such Purchase Agreement unless the
indemnifying party is materially prejudiced by such lack of notice. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate in defense of such claim, and,
to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, (x) the indemnifying party shall
not be liable to the indemnified party pursuant to the indemnification
provisions hereof or of such Purchase Agreement for any legal or other
expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation,
(y) the indemnifying party shall not be liable for the costs and
expenses of or Losses arising out of any settlement of such claim or
action unless such settlement was effected with the consent of the
indemnifying party and (z) the indemnified party shall be obligated to
cooperate with the indemnifying party in the investigation of such
claim or action; provided, however, that the Securities Holders
(together with their respective controlling Persons) and the
underwriters (together with their respective controlling Persons) shall
each as a separate group have the right to employ one separate counsel
to represent such Securities Holders and such underwriters (and their
respective controlling Persons) who may be subject to liability arising
out of any claim in respect of which indemnity may be sought by such
Securities Holders and underwriters against the Company pursuant to the
indemnification provisions of such Purchase Agreement if, in the
reasonable judgment of either Securities Holders' counsel or counsel
for the underwriters, there exists an actual or potential conflict of
interest between such Securities Holders (and its controlling persons)
on the one hand and such underwriters (and their controlling persons)
on the other, and in that event the reasonable fees and expenses of
both such separate counsel shall also be paid by the Company.
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(b) As a condition to agreeing in any Purchase Agreement to
the indemnification provisions described in subsection 4.7(a)(iii) and
4.7(a)(iv) in favor of an underwriter participating in the offering covered by
the related Registration Statement and its controlling Persons, the Company and
the Securities Holders participating in an offering pursuant to such
Registration Statement may require that such underwriter agree in the Purchase
Agreement to provisions substantially in the form set forth in subsection
4.7(a)(v) and to severally indemnify and hold harmless the Company, each of its
officers and directors who sign such Registration Statement, each Securities
Holder participating in such offering and each Person, if any, who controls the
Company or such Securities Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any Losses to which the
Company, such officers and directors, such Securities Holder or such controlling
Person may become subject under the Securities Act, or otherwise, insofar as
such Losses arise out of, or are based upon, any untrue statement or alleged
untrue statement of any material fact contained in such Registration Statement
in which such underwriter is named as an underwriter, any related Preliminary
Prospectus or any related Prospectus, 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 to reimburse the Company, such officers
and directors, such Securities Holder or such controlling Person for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such Loss in each case to the extent, but only to the extent,
that any such Loss arises out of, or is based upon, an untrue statement or
alleged untrue statement of a material fact or an omission or alleged omission
to state a material fact in said Registration Statement, said Preliminary
Prospectus or said Prospectus or any said amendment or supplement in reliance
upon, and in conformity with, written information furnished to the Company by or
on behalf of such underwriter specifically for use therein.
(c) In order to provide for just and equitable contribution
between the Company and such Securities Holders in circumstances in which the
indemnification provisions described in this subsection 4.7 and contained in any
Purchase Agreement are for any reason insufficient or inadequate to hold the
indemnified party harmless (other than as a result of their nonapplicability in
accordance with their terms), the Company and such Securities Holders shall
contribute to the aggregate Losses (including any investigation, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but after
deducting any contribution actually received from Persons other than the Company
and such Securities Holders) incurred by the Company and one or more of its
directors or its officers who sign such Registration Statement or such
Securities Holders or any controlling Person of any of them, in such proportion
as is appropriate to reflect their relative degrees of fault in connection with
the actions which resulted in such Losses, as well as any other relevant
equitable considerations. The relative fault of the Company and of such
Securities Holder shall be determined by reference to, among other things,
whether the untrue or allegedly 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 by such Securities Holder and the parties' relative
intent, knowledge, access to information and opportunity to correct or
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prevent such statement or omission; provided, however, that the liability of
each such Securities Holder to make such contribution shall be limited to an
amount equal to the net proceeds of the sale of Registerable Notes by such
Securities Holder in the offering which gave rise to the liability. As among
themselves, such Securities Holders agree to contribute to amounts payable by
other such Securities Holders in such manner as shall, to the extent permitted
by law, give effect to the provisions in such Purchase Agreement comparable to
subsection 4.7(a)(ii). The Company and such Securities Holders agree that it
would not be just and equitable if their respective obligations to contribute
pursuant to this subsection 4.7(c) were to be determined by pro rata allocation
(other than as set forth above) of the aggregate Losses by reference to the
proceeds realized by such Securities Holders in a sale pursuant to said
Registration Statement or said Prospectus or by any other method of allocation
which does not take account of the considerations set forth in this subsection
4.7(c). No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution under
this subsection from any Person who was not guilty of such fraudulent
misrepresentation.
(d) The Company and the Securities Holders participating in an
offering pursuant to a Registration Statement agree that, if the underwriters
participating in a Public Sale Event are agreeable, the Purchase Agreement, if
any, relating to such Registration Statement shall contain provisions to the
effect that in order to provide for just and equitable contribution between such
underwriters on the one hand and the Company and such Securities Holders on the
other hand in circumstances in which the indemnification provisions of such
Purchase Agreement are for any reason insufficient or inadequate to hold the
indemnified party harmless (other than as a result of their non-applicability in
accordance with their terms), the Company and such Securities Holders on the one
hand and such underwriters on the other hand will contribute on the basis herein
set forth to the aggregate Losses (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or claims asserted, but after deducting any
contribution actually received from Persons other than the Company and such
Securities Holders and such underwriters), incurred by the Company and one or
more of its directors or its officers who sign such Registration Statement or
such Securities Holders or such underwriters, or any controlling Person of any
of them, in such proportion as is appropriate to reflect their relative degrees
of fault in connection with the actions which resulted in such Losses, as well
as any other relevant equitable considerations. The relative fault of the
Company, of such Securities Holders and of such underwriter shall be determined
by reference to, among other things, whether the untrue or allegedly untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, by such Securities
Holders or by such underwriter and the parties, relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. Notwithstanding the provisions set forth above, (x) no underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Unsecured PIK Notes underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue
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statement or omission or alleged omission and (y) the liability of each such
Securities Holder to make such contribution shall be limited to an amount equal
to the net proceeds of the sale of Registerable Notes by such Securities Holder
in the offering which gave rise to the liability. As among themselves, such
Securities Holders agree to contribute to amounts payable by other such
Securities Holders in such manner as shall, to the extent permitted by law, give
effect to the provisions in such Purchase Agreement comparable to subsection
4.7(a)(ii). As between the Company and such Securities Holders, such parties
agree that it would not be just and equitable if their respective obligations to
contribute pursuant to this subsection 4.7(d) were to be determined by pro rata
allocation (other than as set forth above) of the aggregate Losses by reference
to the proceeds realized by such Securities Holders in a sale pursuant to said
Registration Statement or said Prospectus or by any other method of allocation
which does not take account of the considerations set forth in this subsection
4.7(d). No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution under the
provisions set forth above from any Person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company and the Securities Holders
participating in any distribution of Registerable Notes under the provisions of
this subsection 4.7 and provisions in any Purchase Agreement substantially
similar to subsections 4.7(a), 4.7(b), 4.7(c) or 4.7(d) shall survive the
termination of any or all of the other provisions of this Agreement or such
Purchase Agreement.
4.8. Underwritten Offerings. If at any time any of the
Securities Holders participating in a Demand Registration desire to sell
Registerable Notes in an underwritten offering, the investment banker or
investment bankers that will manage the offering will be selected by (a) if such
Demand Registration was initiated by Initiating Securities Holders, the
Initiating Securities Holders owning a majority of the aggregate principal
amount of Registerable Notes that all such Initiating Securities Holders are
seeking to include in the related Sale Event and (b) if such Demand Registration
was initiated by an individual Securities Holder, the Securities Holder
requesting such Securities Holder Public Sale Event, provided that in any event,
such investment banker or bankers must be reasonably satisfactory to the
Company.
4.9. Transfer of Rights Under this Agreement; Transfers of
Registerable Notes. (a) At any time, the rights and obligations of a Securities
Holder under this Agreement may be transferred by a Securities Holder to a
transferee of Registerable Notes, provided that, within a reasonable period of
time (but in no event later than 10 days) after such transfer, (i) the
transferring Securities Holder shall have furnished the Company and the other
Securities Holders written notice of the name and address of such transferee and
the Registerable Notes with respect to which such rights are being transferred
and (ii) such transferee shall furnish the Company and the Securities Holders
(other than the transferring Securities Holder) a copy of a duly executed
Supplemental Addendum by which such transferee (A) assumes all of the
obligations and liabilities of its transferor hereunder, (B) enjoys all of the
rights of its transferor hereunder and (C) agrees to be bound hereby.
Notwithstanding the foregoing, a Securities Holder's transfer of its rights and
obligations under this Agreement in accordance with the preceding sentence to a
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transferee of less than all of the Registerable Notes owned by such transferor
shall not be effective to transfer the right to request a Demand Registration
pursuant to subsection 2.1 hereof unless (x) at the time of such transfer the
transferor Securities Holder has not exhausted its right to request such a
Demand Registration and (y) the transfer is of at least 50% of the issued and
then outstanding Unsecured PIK Notes , provided, that, subject to the Company's
rights under subsection 4.10 of this Agreement, such a transfer of the right to
request a Demand Registration shall not divest the transferor Securities Holder
of its right to request a Demand Registration pursuant to subsection 2.1 hereof.
(b) Except with respect to transfers pursuant to subsection
4.9(a), a transferee of Registerable Notes shall neither assume any liabilities
or obligations nor enjoy any rights hereunder and shall not be bound by any of
the terms hereof.
4.10. Termination of Rights. The rights granted under this
Agreement shall terminate as to each Securities Holder at such time as such
Securities Holder shall receive, either before or after the Company's receipt of
a Securities Holder Sale Notice or a Piggybacking Notice, an opinion of counsel
to the Company in form reasonably satisfactory to counsel to such Securities
Holder that all of the Registerable Notes then held by such Securities Holder
can be sold within a given three (3) month period commencing on the date of such
opinion in a transaction or transactions exempt from the Registration
requirements of the Securities Act.
Section 5. Sequencing of Public Sale Events.
5.1. Effective Notice Period. Subject to the last sentence of
this subsection 5.1, during the term of this Agreement, no priority of right
shall exist between or among Securities Holders, with respect to providing a
Notice of Offering with respect to, and effecting, a Public Sale Event. Once
properly given, a Securities Holder Sale Notice shall be effective (and shall
preclude any such Notice of Offering by another party except in accordance with
clause (ii) of Section 2.3(b)) during the period (the "Effective Notice Period")
commencing on the date of such Notice of Offering and ending on the earliest of
(a) withdrawal of such Notice of Offering (notice of which shall be promptly
effected in the same manner as such Notice of Offering), (b) the abandonment of
the Securities Holder Public Sale Event to which such Notice of Offering relates
(notice of which shall be promptly effected in the same manner as such Notice of
Offering) and (c) the later of (i) 150 days after such a Notice of Offering has
been given, provided that the Registration Statement relating to such Notice of
Offering has been declared effective within 90 days of such Notice of Offering,
and (ii) 90 days after the closing date of the Public Sale Event to which such
Notice of Offering relates. Upon the termination of an Effective Notice Period,
any Securities Holder so entitled pursuant to subsection 2.1 can provide a
Notice of Offering, provided that if such Notice of Offering is given within 12
months after the end of an Effective Notice Period by the party that gave the
immediately preceding Notice of Offering, any other party shall, for the 45-day
period following its receipt of such Notice of Offering, have the right to
preempt such Notice of Offering by itself delivering a Notice of Offering.
5.2. Restrictive Legend on Certificates. (a) Each Certificate
evidencing
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Unsecured PIK Notes distributed pursuant to the Plan to the Securities Holders
shall, subject to paragraph (b) below, be stamped or otherwise imprinted with a
conspicuous legend in the following form:
"The securities evidenced by this certificate were issued
pursuant to an exemption from registration under the
Securities Act of 1933, as amended (the "Act"), and may be
offered, sold or otherwise transferred only pursuant to a
Registration Statement effective under the Act or an exemption
from the provisions of Section 5 of the Act."
(b) A holder of a certificate evidencing Unsecured PIK Notes
bearing the legend specified in paragraph (a) shall be entitled to receive from
the Company, whether or not in connection with a sale or proposed sale, a new
certificate or certificates evidencing an identical principal amount of
Unsecured PIK Notes (the transfer expenses for which shall be paid by the
Company) but without such legend at such time as (i) such Unsecured PIK Notes
are sold pursuant to a Registration Statement effective under the Securities
Act, (ii) such holder furnishes the Company with a certificate to the effect
that such holder is not an affiliate or an "underwriter" within the meaning of
Section 1145(b) of the Bankruptcy Code and, upon the request of the Company, an
opinion of counsel reasonably satisfactory to the Company to such effect and to
the effect that such Unsecured PIK Notes may be sold without registration under
the Securities Act or (iii) the registration rights granted in this Agreement
otherwise terminate in accordance with subsection 4.10. The Unsecured PIK Notes
represented by any such replacement certificate issued without the legend
specified in paragraph (a) pursuant to the immediately preceding sentence shall
cease to be Registerable Notes for all purposes of this Agreement. In addition,
if any Unsecured PIK Notes are held in global form at the time of such issuance,
such replacement Unsecured PIK Notes shall, upon written request of such holder
or beneficial owner, be issued in global form through the reissuance of the
global certificate representing the Unsecured PIK Notes in a principal amount
increased to reflect the principal amount of such replacement Unsecured PIK
Notes. In such event, such replacement Unsecured PIK Notes shall not be issued
in physical certificated form.
Section 6. Representations and Warranties of the Company.
In connection with the Registration Statement in respect of
any Demand Registration, the Company shall, on the date of effectiveness of such
Registration Statement or the date of the final receipt for the Canadian
Prospectus (the "effective date"), certify to each Securities Holder in a
certificate of a Responsible Officer of the Company to the effect that the
representations and warranties set forth below are true and correct at and as of
the effective date. In connection with any other Sale Event in which Securities
Holders participate, except as otherwise may be agreed upon by such
participating Securities Holders and the Company, the Company shall represent
and warrant in the Purchase Agreement relating to such Securities Holder Public
Sale Event to the Securities Holders and any underwriters participating in such
Securities Holder Public Sale Event as follows (except as otherwise indicated,
each reference in this Section to "the Registration Statement" shall refer to a
Registration Statement in respect of any Demand Registration or other such Sale
Event in which Securities Holders participate, including all information deemed
to be a
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part thereof, as amended, and each reference to "the Prospectus" shall refer to
the related Prospectus):
(a) (i) When the Registration Statement became (in the case of
a Demand Registration to be filed pursuant to a Shelf Registration) or
shall become effective, the Registration Statement did or will comply
as of its effective date in all material respects with the applicable
requirements of the Securities Act and the rules and regulations
thereunder; (ii) when the Prospectus is filed in accordance with Rule
424(b) and/or in accordance with applicable Canadian Securities Laws,
the Prospectus (and any supplements thereto) will comply in all
material respects with the applicable requirements of the Securities
Act and/or applicable Canadian Securities Laws and the rules and
regulations thereunder; (iii) the Registration Statement did not or
will not as of its effective date contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and (iv) the Prospectus, if not filed pursuant to Rule
424(b), did not or will not as of the date thereof, and on the date of
any filing pursuant to Rule 424(b), the Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, and if filed pursuant to Canadian
Securities Law will constitute full, true and plain disclosure of all
material facts relating to the securities offered thereunder; provided,
however, that the Company makes no representations or warranties as to
the information contained in or omitted from the Registration
Statement, or the Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of any Securities Holder specifically for use
in connection with the preparation of the Registration Statement or the
Prospectus (or any supplement thereto) or any information furnished in
writing to the Company by or on behalf of any underwriter specifically
for use in connection with the preparation of the Registration
Statement or the Prospectus (or any supplement thereto), other than
that the Company has no knowledge of any such untrue statement or
omission in respect of such information.
(b) The public accountants who certified the Company's
financial statements in the Registration Statement are independent
certified public accountants within the meaning of the Securities Act
and the applicable published rules and regulations thereunder, or, to
the extent that Canadian law is deemed to control pursuant to the terms
of the Securities Act, within the meaning of such controlling Canadian
law; the historical consolidated financial statements, together with
the related schedules and notes, forming part of the Registration
Statement and the Prospectus comply in all material respects with the
requirements of the Securities Act and/or applicable Canadian
Securities Laws and the rules and regulations thereunder and have been
prepared, and present fairly in all material respects the consolidated
financial condition, results of operations and changes in financial
condition of the Company and its consolidated Subsidiaries at the
respective
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dates and for the respective periods indicated, in accordance with
generally accepted accounting principles applied consistently
throughout such periods (except as specified therein); and the
historical consolidated financial data set forth in the Prospectus are
derived from the accounting records of the Company and its consolidated
Subsidiaries, and are a fair presentation of the data purported to be
shown; and the pro forma consolidated financial statements (if any),
together with the related notes, forming part of the Registration
Statement and the Prospectus, comply in all material respects with the
requirements of all applicable securities laws, including, without
limitation, Regulation S-X of the Securities Act, to the extent
applicable.
(c) Except as may be set forth in the Prospectus, each member
of the ▇▇▇▇▇▇ Group has been duly organized and is validly existing as
a corporation, limited or general partnership, limited liability
company or other similar entity in good standing under the laws of the
jurisdiction in which it is organized, with the corporate or other
analogous power and authority to own its properties and conduct its
business as described in the Prospectus, and is duly qualified to do
business as a foreign corporation or other analogous entity and is in
good standing under the laws of each jurisdiction which requires such
qualification where the failure to be so qualified could materially
adversely affect the business, operations, property or financial
condition of the ▇▇▇▇▇▇ Group taken as a whole.
(d) Except as may be set forth in the Prospectus, all the
outstanding shares of capital stock of each Subsidiary have been duly
authorized and validly issued and are fully paid and nonassessable by
the issuer, and all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through
Subsidiaries free and clear of any security interests, claims, liens or
encumbrances (other than those granted to secure the obligations of the
▇▇▇▇▇▇ Group in respect of the Secured PIK/Term Credit Agreement or the
Exit Facility or other secured debt permitted therein), except in each
case where the failure to so own the capital stock of a Subsidiary
could materially adversely affect the business, operations, property or
financial condition of the ▇▇▇▇▇▇ Group taken as a whole.
(e) Except as may be set forth in the Prospectus, no member of
the ▇▇▇▇▇▇ Group is in violation of any term or provision of any
charter, by-law, franchise, license, permit, judgment, decree or order
or any applicable statute, rule or regulation, which violation could be
material to the business, operations, property or financial condition
of the ▇▇▇▇▇▇ Group taken as a whole.
(f) Except as may be set forth in the Prospectus, no default
exists and no event has occurred which with notice, lapse of time, or
both, would constitute a default, in the due performance and observance
of any term, covenant or condition of any agreement to which the
Company or any of the Subsidiaries is a party or by which it or any of
them is bound, which default could materially adversely affect the
business, operations, property or financial condition of the ▇▇▇▇▇▇
Group taken as a whole.
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(g) Except as may be set forth in the Prospectus, each member
of the ▇▇▇▇▇▇ Group has all requisite corporate or other analogous
power and authority and has received and is operating in compliance in
all material respects with all governmental or regulatory or other
franchises, grants, authorizations, approvals, licenses, permits,
easements, consents, certificates and orders, necessary to own its
properties and conduct businesses as currently owned and conducted and
as proposed to be conducted, except where the failure to do so could
not materially adversely affect the business, operations, property or
financial condition of the ▇▇▇▇▇▇ Group, taken as a whole.
(h) Except as may be described in the Prospectus, since the
date of the most recent financial statements included in the
Prospectus, there has been no material adverse change in the business,
operations, property or financial condition of the ▇▇▇▇▇▇ Group taken
as a whole, whether or not arising from transactions in the ordinary
course of business.
(i) Except as may be described in the Prospectus, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the best knowledge of the
Company, threatened against any member of the ▇▇▇▇▇▇ Group or against
any of their respective properties or revenues, existing or future
which, if adversely determined, could have a material adverse effect on
the business, property or financial condition of the ▇▇▇▇▇▇ Group taken
as a whole, or which otherwise is of a character required to be
disclosed in the Prospectus; there is no franchise, contract or other
document of a character required to be described in the Registration
Statement or the Prospectus, or to be filed as an exhibit thereto,
which is not described or filed as required; and the descriptions of
such franchises, contracts and other documents described in the
Prospectus fairly summarize the matters purported to be described
therein.
(j) Except as may be described in the Prospectus, there is no
pending or, to the best knowledge of the Company, threatened action,
suit, or judicial, arbitral, rule-making or other administrative or
other proceeding against the Company which challenges the validity of
(i) this Agreement or (ii) any Purchase Agreement entered into in
connection with the offering or any action taken or to be taken
pursuant to or in connection with such agreements.
(k) The Company's authorized equity capitalization is as set
forth in the Prospectus; the capital stock of the Company conforms in
all material respects to the description thereof contained in the
Prospectus; all of the issued and outstanding shares of capital stock
of the Company have been duly authorized and validly issued and, except
as set forth in the Prospectus, are fully paid and nonassessable.
(l) The Company has all requisite corporate power and
authority, has taken all requisite corporate action, and has received
and is in compliance with all governmental, judicial and other
authorizations, approvals and orders, necessary in connection with the
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offering, and to carry out the provisions and conditions of this
Agreement and the Purchase Agreement, if any, related thereto, except
for such approvals and conditions that need to be obtained or satisfied
as are set forth in the Prospectus and such approvals or authorizations
as may be required under the Securities Act, the securities or "Blue
Sky" laws of any jurisdiction or the rules of any securities exchange
on which the securities of the Company are listed in connection with
the purchase and distribution of Unsecured PIK Notes in the offering.
The Purchase Agreement, if any, entered into in connection with the
offering has been duly authorized, executed and delivered by the
Company and is a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles;
provided, that no representation is made as to the validity, binding
effect or enforceability of any provision that purports to provide
indemnification of any Person for any Losses resulting from violation
by such person of any applicable securities or "Blue Sky" laws.
(m) To the best knowledge of the Company, neither the sale of
the Unsecured PIK Notes to be sold pursuant to the Registration
Statement, nor the execution, delivery or performance by the Company of
the Purchase Agreement, if any, entered into in connection with the
offering or the consummation of any other of the transactions
contemplated in such Purchase Agreement, if any, will conflict with,
result in a breach of, or constitute a default under, the charter or
by-laws of the Company or any of the Subsidiaries or the terms of any
material indenture or other material agreement or instrument to which
the Company or any of the Subsidiaries is a party or by which it or any
of them is bound, or any material statute applicable to the Company or
any of the Subsidiaries or any material order, decree, rule or
regulation applicable to the Company or any of the Subsidiaries of any
Governmental Authority.
(n) Except (i) as set forth in the Prospectus and (ii) to the
extent permitted under subsection 5.6, no holders of securities of the
Company have rights to the registration of such securities under any
Registration Statement except the Securities Holders.
For purposes of the foregoing representations and warranties, the Company may
assume that any agreement is the valid and binding obligation of any other
parties to such agreement.
Section 7. Representations and Warranties of the Securities Holders.
Each participating Securities Holder shall, in connection with
a Securities Holder Public Sale Event, if required by the terms of a Purchase
Agreement relating to such Sale Event, for itself severally and not jointly
represent and warrant to (i) in the case of an underwritten Public Sale Event,
the Company, the underwriter or underwriters and each other Securities Holder
participating in such underwritten Public Sale Event or (ii) in the case of a
non-underwritten Sale Event, the Company and the purchaser or purchasers and
each other Securities Holder participating in such non-underwritten Sale Event,
as follows:
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(a) Such Securities Holder has all requisite power and
authority to enter into and carry out the terms of this Agreement and
such Purchase Agreement and the other agreements and instruments
related to such agreements to which it is a party.
(b) Each of this Agreement and such Purchase Agreement has
been duly authorized, executed and delivered by or on behalf of such
Securities Holder, and constitutes the valid and binding obligation of
such Securities Holder enforceable against such Securities Holder in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles; provided, that no representation
is made as to the validity, binding effect or enforceability of any
provision purporting to provide indemnification of any person for any
Losses resulting from violation by such person of any applicable
securities or "Blue Sky" laws.
(c) Such Securities Holder, immediately prior to any sale of
Registerable Notes pursuant to such Purchase Agreement, will have good
and marketable title to such Registerable Notes, free and clear of all
liens, security interests, encumbrances, equities, claims or other
defects in title (other than those created by this Agreement); and,
upon payment therefor, good and marketable title to such Registerable
Notes will pass to the purchaser thereof, free and clear of any lien,
security interest, encumbrance, equity, claims or other defect in
title.
(d) Such Securities Holder has not taken and will not take,
directly or indirectly, any action designed to constitute or which has
constituted or which might reasonably be expected to cause or result
in, under the Exchange Act or the rules or regulations promulgated
thereunder or other applicable law, stabilization or manipulation of
the price of any security of the Company to facilitate the sale or
resale of Registerable Notes.
(e) Written information furnished by or on behalf of such
Securities Holder to the Company expressly for use in the Registration
Statement, any related Preliminary Prospectus, or any related
Prospectus or any amendment or supplement thereto will not contain, in
each case as of the date such information was furnished, any untrue
statement of a material fact or omit to state any material fact
required to be stated or necessary to make the statements in such
information not misleading.
(f) To the best knowledge of such Securities Holder, neither
the sale of the Registerable Notes to be sold pursuant to the
Registration Statement, nor the execution, delivery or performance by
such Securities Holder of the Purchase Agreement, if any, entered into
in connection with the offering or the consummation of any other of the
transactions contemplated in such Purchase Agreement, if any, will
conflict with, result in a breach of, or constitute a default under,
the charter or by-laws of such Securities Holder or the terms of any
material indenture or other material agreement or instrument to which
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such Securities Holder is a party or by which it is bound, or any
material statute applicable to such Securities Holder or any material
order, decree, rule or regulation applicable to such Securities Holder
of any Governmental Authority.
(g) Such Securities Holder will deliver to any underwriter a
properly completed and executed United States Treasury Department Form
W-8 or Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof).
Section 8. Delivery of Comfort Letter and Legal Opinion. On
the date that a Registration Statement relating to a Securities Holder Public
Sale Event in which Securities Holders participate is declared effective by the
Commission or any Canadian Securities Authority, the Company shall comply with
the following:
(a) The Company shall have received, and delivered to each
Securities Holder participating in such Securities Holder Public Sale
Event, a copy of the "comfort" letter or letters, or updates thereof
according to customary practice, of the independent certified public
accountants who have certified the Company's financial statements
included in the Registration Statement covering substantially the same
matters with respect to the Registration Statement (including the
Prospectus) and with respect to events subsequent to the date of the
Company's financial statements as are customarily covered in
accountants' letters delivered to underwriters in underwritten public
offerings of securities. The Company will use its reasonable best
efforts to cause such "comfort" letters to be addressed to such
Securities Holders.
(b) Each Securities Holder and any underwriters participating
in such offering shall have received an opinion and any updates thereof
of outside counsel to the Company reasonably satisfactory to such
Securities Holders and underwriters covering substantially the same
matters as are customarily covered in opinions of issuer's counsel
delivered to underwriters in underwritten public offerings of
securities, addressed to each of such Securities Holders and
underwriters participating in such offering and dated the closing date
thereof.
Section 9. Miscellaneous.
9.1. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when actually delivered or, in the
case of notice by facsimile transmission, when sent and confirmation of receipt
is received. Notices to the Securities Holders shall be deemed to have been
given or made when sent. All notices shall be addressed as follows or to such
other address as may be hereafter designated in writing by the respective
parties hereto:
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The Company: ▇▇▇▇▇▇ Services Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
The Securities Holders: The address of each Securities Holder
as set forth on the signature
pages hereof.
9.2. Amendments and Waivers. The Securities Holders of not
less than 66-2/3% of the Registerable Notes held or beneficially owned by
Securities Holders at any point in time and the Company may from time to time
enter into written amendments, supplements or modifications to this Agreement
for the purpose of adding any provisions hereto or thereto or changing in any
manner the rights of the Securities Holders or the Company hereunder or
thereunder, and the Securities Holders of not less than 66-2/3% of the
Registerable Notes held or beneficially owned by Securities Holders at any point
in time may execute a written instrument waiving, on such terms and conditions
as may be specified therein, any of the requirements of this Agreement which are
solely for the benefit of the Securities Holders and where such waiver does not
adversely affect the interests of the Company; provided, however, that no such
waiver and no such amendment, supplement or modification shall (i) adversely
affect the rights of a Securities Holder under Section 2 hereof or (ii) amend,
modify or waive any provision of Section 4 or this subsection 9.2, in each case
without the written consent of each Securities Holder. Any such waiver and any
such amendment, modification or supplement shall apply equally to each of the
Securities Holders and the Company.
9.3. Termination. This Agreement and the respective
obligations and agreements of the parties hereto, except as otherwise expressly
provided herein, shall terminate on the Termination Date.
9.4. Survival of Representations and Warranties. Except as
they may by their terms relate to an earlier date, all representations and
warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the termination of any or all of the
provisions of this Agreement.
9.5. Headings. The descriptive headings of the several
sections and subsections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
9.6. Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all of such counterparts shall together constitute one and the same
agreement.
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9.7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9.8. No Inconsistent Agreements. The Company will not on or
after the date of this Agreement enter into any agreement with respect to its
securities which is inconsistent with the rights granted to the Securities
Holders in this Agreement or otherwise conflicts with the provisions hereof.
9.9. Severability. Any provision of this Agreement prohibited
or rendered unenforceable by any applicable law of any jurisdiction shall as to
such jurisdiction be ineffective to the extent of such prohibition or
unenforceability, without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
9.10. ENTIRE AGREEMENT. THIS AGREEMENT CONSTITUTES THE
ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES
HERETO.
9.11. No Required Sale. Nothing in this Agreement shall be
deemed to create an independent obligation on the part of any of the Securities
Holders to sell any Unsecured PIK Notes pursuant to any Registration Statement
or otherwise.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
▇▇▇▇▇▇ SERVICES CORPORATION
By:
------------------------------------------
Name:
Title:
SECURITIES HOLDERS:
AMERICAN REAL ESTATE HOLDINGS, L.P.
By: AMERICAN PROPERTY INVESTORS,
INC., its General Partner
By:
------------------------------------------
Name:
Title:
Address for notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
HIGH RIVER LIMITED PARTNERSHIP
By: RIVERDALE LLC, its General Partner
By:
------------------------------------------
Name:
Title:
Address for notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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Exhibit A
SECURITIES HOLDER'S QUESTIONNAIRE
Please complete and return immediately to ▇▇▇▇▇▇ Services
Corporation at the following address:
▇▇▇▇▇▇ Services Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: Chief Financial Officer
The information requested below is required for purposes of
any Public Sale Event pursuant to the Registration Rights Agreement dated as of
March 31, 2000 (the "Agreement") that may be initiated from time to time. If you
do not furnish the Company with the requested information, you will not be
entitled to participate in any such registration. Unless otherwise defined
herein, capitalized terms shall have the meanings ascribed thereto in the
Agreement.
Please do not leave any request for information unanswered. If
your response to a request is "no" or "not applicable," please so state. If
additional space is required, please attach additional sheets to the end of this
Questionnaire, clearly identifying the portion hereof to which they relate.
If you have any questions regarding this Questionnaire,
please contact ________________________________.
I. Information required for notices.
Institution Name:
Street Address:
Post Office Box:
City/State/Zip:
Fed. Tax ID. No.
(if any):
Telecopier Number:
Contacts (Please include alternative contacts).
1. Name:
Title:
Function:
Business Telephone:
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2. Name:
Title:
Function:
Business Telephone:
II. Information required by the Securities Act of 1933, as amended, and
related regulations.
A. Federal Securities Laws
1. Name and Address. Give your name and address
exactly as they should appear in any Prospectus.
2. Ownership of Registerable Notes. State the aggregate
principal amount of Registerable Notes, if any, owned by you or your affiliates
as of the date hereof.
Aggregate Principal Amount of Registerable Notes:
3. Beneficial Ownership of Unsecured PIK Notes . Please
furnish the following information, in the tabular form indicated, as to the
Unsecured PIK Notes beneficially owned (see definition at end of Questionnaire)
by you (including amounts held in your Trust Department in discretionary
accounts):
If such ownership is
shared with others,
indicate nature and
Aggregate Principal Nature of extent of such
Amount(1) Beneficial Ownership(2) shared ownership
[FN]
__________________________
(1) Include Unsecured PIK Notes which you have the right to acquire through the
exercise of options, warrants or other securities on or before 60 days after the
estimated date of the Prospectus.
(2) Please indicate the extent to which you have sole voting power, shared
voting power, sole investment power and shared investment power with respect to
shares of Unsecured PIK Notes you beneficially own.
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4. Disclaimer of Beneficial Ownership. Please indicate below
the number and description of any Unsecured PIK Notes with respect to which you
disclaim beneficial ownership and whether such Unsecured PIK Notes are included
in the figure(s) reported above.
5. Five Percent Beneficial Owners. Please give the name and
address of any Person, corporation or other entity, other than the parties to
the Agreement, known to you to own beneficially 5% or more of the outstanding
Unsecured PIK Notes (i.e., $______ or more in aggregate principal amount).
NOTE: For purposes of your response to this question, the term "Person"
includes two or more Persons acting as a partnership, limited
partnership, syndicate, or other group for the purpose of
acquiring, holding or disposing of the Company's securities.
6. Underwriters. Please describe briefly and state the nature
of any relationship or interest that you have or any associate of yours (see
definition at end of Questionnaire) has, in any underwriter of the securities to
be offered. If you are a member or controlling Person of a firm that may be an
underwriter of the securities to be offered, briefly describe your relationship
to, and interest in, such underwriter.
NOTE: The underwriters will be listed in the final amendment to the
Registration Statement, a copy of which will be sent to you at a
later date.
7. Material Relationships. Please list all material
relationships that you now have, or have had since _______________, with the
Company or any of its affiliates, other than your ownership of the Unsecured
PIK Notes or your participation in the Company's bankruptcy case.
B. NASD Regulations.
8. NASD Membership. State whether you are a "member" of the
National Association of Securities Dealers, Inc. (the "NASD"), a "Person
associated with a member" or an "underwriter or a related Person" with respect
to the proposed offering.
NOTES: (1) The NASD By-Laws define "member" to mean
either any broker or dealer admitted to membership in the
NASD.
(2) The NASD By-Laws define "Person associated with a
member" to mean every sole proprietor, partner, officer,
director or branch manager of any member, or any natural
Person occupying a similar status or performing similar
functions, or any natural Person engaged in the investment
banking or securities business who is directly or indirectly
controlling or controlled by such member, whether or not any
such Person is registered or exempt from Registration with the
NASD.
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(3) The NASD has interpreted "underwriter or a
related Person" with respect to a proposed offering to include
an underwriter, underwriters' counsel, financial consultants
and advisers, finders, members of the selling or distribution
group, and any and all other Persons "associated with" or
"related to" any of such Persons.
9. Purchase by NASD Affiliates. If your answer to the
preceding question was "yes," please furnish the following information, in the
tabular form indicated, as to all purchases and acquisitions (including
contracts to purchase or to acquire) by you, of warrants, options or any other
securities of the Company or any subsidiary thereof, during the preceding 12
months, as well as all proposed purchases or acquisitions by you which are to be
consummated in whole or in part prior to, at the time of or within six months
after the effectiveness of the Registration Statement.
Purchaser or Seller or Amount and Price or
Prospective Prospective Name of Other
Date Purchaser Seller Securities Consideration
======== ============ ============ ============ ============
======== ============ ============ ============ ============
======== ============ ============ ============ ============
======== ============ ============ ============ ============
10. Dealings with Company. Please describe any other dealings
within the preceding 12 months not already described in response to the
foregoing questions between the Company or any subsidiary or controlling
shareholder thereof and any underwriter, related Person of such underwriter,
NASD member or Person associated with such member affiliated with you, as such
terms are defined in the Notes to Question 10.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS TO ANY PERSON
WHO MAY BE LIABLE IN RESPECT OF A REGISTRATION OR OTHER OFFERING PURSUANT TO THE
AGREEMENT THAT THE ANSWERS GIVEN IN THIS QUESTIONNAIRE ARE CORRECTLY STATED TO
THE KNOWLEDGE, INFORMATION AND BELIEF OF THE UNDERSIGNED. THE UNDERSIGNED HEREBY
AGREES TO PROMPTLY NOTIFY THE COMPANY OF ANY CHANGE IN SUCH ANSWERS WHICH MAY
OCCUR DURING THE PERIOD BEGINNING WITH THE DATE BELOW AND ENDING ON THE DATE 90
DAYS AFTER THE EFFECTIVE DATE OF ANY REGISTRATION STATEMENT RELATING TO A
REGISTRATION OR OTHER OFFERING PURSUANT TO THE AGREEMENT. THE UNDERSIGNED HEREBY
AGREES, FOLLOWING NOTICE OF ANY PROPOSED REGISTRATION TO UPDATE AND AMEND THIS
QUESTIONNAIRE IF THERE IS ANY MATERIAL CHANGE IN THE ABOVE INFORMATION AND TO
PROVIDE ANY ADDITIONAL INFORMATION REQUESTED BY THE COMPANY PURSUANT TO THE
AGREEMENT.
Dated: ______________, 20__.
Holder:
By:
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Name:
Title:
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DEFINITIONS
As used in this Questionnaire:
"affiliate" means a Person or organization that directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, the Company.
An "associated person" means (1) any corporation or
organization (other than the Company or a majority owned subsidiary) of which
you are an executive officer or partner or are, directly or indirectly, the
beneficial owner of 10% or more of any class or equity securities and (2) any
trust or other estate in which you have substantial beneficial interest or to
which you serve as trustee or in a similar fiduciary capacity.
Securities "owned beneficially" by you are securities (whether
or not registered in your name) in which you have or share (directly or
indirectly through any contract, arrangement, understanding, relationship or
otherwise) (i) voting power, which includes the power to vote or direct the
voting of the securities, or (ii) investment power, which includes the power to
dispose, or direct the disposition, of the securities. You are also deemed to be
the beneficial owner of any securities which you have the right to acquire
immediately or within 60 days (a) through the exercise of any option, warrant or
right, (b) through the conversion of a security or (c) pursuant to the power to
revoke, or the automatic termination of, a trust, discretionary account or
similar arrangement.
Thus, securities held in the name of other individuals, in the
name of an estate or trust or pursuant to a pledge agreement where you have
either the power to direct the voting of the securities or the disposition of
such securities should be listed as "owned beneficially" by you. The Commission
has also taken the position that securities held by your spouse, minor children,
or other relatives sharing your home should be shown as "owned beneficially" by
you on the theory that, absent special circumstances you are able to exercise a
controlling influence over the purchase, sale or voting of such securities.
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Exhibit B
SUPPLEMENTAL ADDENDUM
The undersigned is a holder of Unsecured PIK Notes of ▇▇▇▇▇▇
Services Corporation. The undersigned hereby agrees as follows:
The undersigned hereby accepts the terms of and becomes a
party to (as a Securities Holder) the Registration Rights Agreement dated as of
March 31, 2000 by and among ▇▇▇▇▇▇ Services Corporation (the "Company") and each
Securities Holder named therein. In connection therewith, the undersigned agrees
to (A) assume all obligations and liabilities thereunder, (B) enjoy all of the
rights thereunder, (C) be bound thereby and (D) perform and comply with the
agreements and commitments on the part of the undersigned, as assignee, set
forth in the Registration Rights Agreement.
As used in this Supplemental Addendum, capitalized terms
defined in the Registration Rights Agreement shall have their respective
defined meanings.
Name of
Address: Institution:
----------------------------
By
-------------------------------------
Name:
Title:
Date: _______________, _____
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