EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of June 6, 2002, by and among XXX Xxxxxxxxxxx, a Maryland corporation
(the "Company"), and Xxxxxxx Xxxxx Barney Inc., Banc One Capital Markets, Inc.,
BNY Capital Markets, Inc., Fleet Securities, Inc., X.X. Xxxxxx Securities Inc.
and McDonald Investments Inc. in their respective capacities as initial
purchasers (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated as of
June 3, 2002, by and among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of $300,000,000 aggregate principal amount of its 7.125% Senior Notes
due 2009 (the "Securities").
In order to induce the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the Initial Purchasers'
obligations thereunder, the Company has agreed to provide to the Initial
Purchasers and their respective direct and indirect transferees and assigns the
registration rights set forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Business Day" shall mean any day, other than a Saturday or
Sunday, that is not a legal holiday, or a day on which banking
institutions are authorized or required by law or regulation to close in
New York, New York.
"Closing Date" shall mean the Closing Date as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble and
also includes the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Company, including any agent thereof;
provided, however, that any such depositary must at all times have an
address in the Borough of Manhattan, in The City of New York.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time, and the rules and regulations of the SEC
promulgated thereunder.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under
the Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange
offer registration statement on Form S-4 covering the Registrable
Securities (or, if applicable, on another appropriate form), and all
amendments and supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" shall mean the Securities issued by the
Company under the Indenture, containing terms identical to the
Securities (except that (i) interest thereon shall accrue from the last
date on which interest was paid on the Securities or, if no such
interest has been paid, from the Closing Date, (ii) the transfer
restrictions thereon shall be eliminated and (iii) certain provisions
relating to an increase in the stated rate of interest thereon shall be
eliminated) which are to be offered to Holders of Registrable Securities
in exchange for Registrable Securities pursuant to the Exchange Offer.
"Holders" shall mean the Initial Purchasers, for so long as they
own any Registrable Securities, and each of their respective successors,
assigns and direct and indirect transferees who become registered owners
of Registrable Securities under the Indenture.
"Indenture" shall mean the Indenture dated as of June 1, 2002,
among the Company and The Bank of New York, as Trustee, relating to the
Securities and the Exchange Securities and as the same may be amended
and supplemented from time to time in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the
preamble of this Agreement.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Registrable Securities outstanding;
provided that whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Company, or any of its affiliates (as such term
is defined in Rule 405 under the Securities Act) (other than the Initial
Purchasers or subsequent holders of Registrable Securities), if such
subsequent holders are deemed to be such affiliates solely by reason of
their holding of such Registrable Securities, shall be disregarded in
determining whether such consent or approval was given by the Holders of
such required percentage or amount.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Participating Broker-Dealer" shall have the meaning set forth
in Section 3(f).
"Person" shall mean an individual, partnership, joint venture,
limited liability company, corporation, trust or unincorporated
organization, or a government or agency or political subdivision
thereof.
2
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus supplement,
including a prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by a Shelf
Registration Statement, and by all other amendments and supplements to a
prospectus, including post-effective amendments, and in each case
including all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble of this Agreement.
"Registrable Securities" shall mean the Securities; provided,
however, that the Securities shall cease to be Registrable Securities
when (i) a Registration Statement with respect to such Securities shall
have been declared effective under the Securities Act and such
Securities shall have been disposed of pursuant to such Registration
Statement, (ii) such Securities shall have been sold to the public
pursuant to Rule 144 (or any similar provision then in force, but not
Rule 144A) under the Securities Act, (iii) such Securities shall have
ceased to be outstanding or (iv) such Securities have been exchanged for
Exchange Securities upon consummation of the Exchange Offer.
"Registration Default" shall have the meaning set forth in
Section 2(e) of this Agreement.
"Registration Expenses" shall mean any and all expenses incident
to performance of or compliance by the Company with this Agreement,
including without limitation: (i) all SEC, stock exchange or NASD
registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state or other securities or blue sky
laws and compliance with the rules of the NASD (including reasonable
fees and disbursements of counsel for any underwriters or Holders in
connection with state or other securities or blue sky qualification of
any of the Exchange Securities or Registrable Securities), (iii) all
expenses of any Persons in preparing, printing and distributing any
Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements,
certificates representing the Exchange Securities and other documents
relating to the performance of and compliance with this Agreement, (iv)
all rating agency fees, (v) all fees and expenses incurred in connection
with the listing, if any, of any of the Exchange Securities or such
Registrable Securities, covered by a Shelf Registration Statement, as
applicable, on any securities exchange or exchanges, (vi) all fees and
disbursements relating to the qualification of the Indenture under
applicable securities laws, (vii) the fees and disbursements of counsel
for the Company and the fees and expenses of the independent public
accountants of the Company, including the expenses of any special audits
or "cold comfort" letters required by or incident to such performance
and compliance, (viii) the fees and expenses of a "qualified independent
underwriter" as defined by Conduct Rule 2720 of the NASD (if required by
the NASD rules) in connection with the offering of the Registrable
Securities and the reasonable fees and expenses of its counsel, (ix) the
reasonable fees and expenses of the Trustee, any registrar, any
depositary and paying agent, including their respective counsel, and any
escrow agent or custodian, (x) the reasonable fees and expenses of one
3
counsel to the Initial Purchasers in connection with the Exchange Offer,
and (xi) in the case of an underwritten offering, any reasonable fees
and disbursements of the underwriters customarily required to be paid by
issuers or sellers of such securities, including the reasonable fees and
expenses of counsel to the underwriters, and the fees and expenses of
any special experts retained by the Company in connection with any
Registration Statement but excluding (except as otherwise provided
herein) fees of counsel to the underwriters or the Holders and
underwriting; provided, however, that, upon the request of the Company,
the Initial Purchasers shall provide reasonable documentation with
respect to expenses incurred by or on behalf of the Initial Purchasers
pursuant to this Agreement.
"Registration Statement" shall mean any registration statement
of the Company relating to any offering of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement, and
all amendments and supplements to any such Registration Statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time, and the rules and regulations of the SEC
promulgated thereunder.
"Shelf Registration" shall mean a registration effected pursuant
to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of
this Agreement which covers all of the Registrable Securities on an
appropriate form under Rule 415 under the Securities Act, or any similar
rule that may be adopted by the SEC, and all amendments and supplements
to such registration statement, including post-effective amendments, in
each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Trustee" shall mean the trustee under the Indenture.
2. Registration Under the Securities Act.
(a) Exchange Offer Registration. To the extent not
prohibited by any applicable law or applicable interpretation of the
staff of the SEC, the Company shall (A) use commercially reasonable
efforts to file with the SEC within 90 calendar days after the Closing
Date an Exchange Offer Registration Statement covering the offer by the
Company to the Holders to exchange all of the Registrable Securities for
Exchange Securities, (B) use commercially reasonable efforts to cause
such Exchange Offer Registration Statement to be declared effective by
the SEC within 150 calendar days after the Closing Date, (C) use
commercially reasonable efforts to cause such Registration Statement to
remain effective until the closing of the Exchange Offer and (D) use
commercially reasonable efforts to consummate the Exchange Offer within
200 calendar
4
days after the Closing Date. The Exchange Securities will be issued
under the Indenture. Upon the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Exchange
Offer, it being the objective of such Exchange Offer to enable each
Holder (other than Participating Broker-Dealers (as defined in Section
3(f))) eligible and electing to exchange Registrable Securities for
Exchange Securities (assuming that such Holder is not an affiliate of
the Company within the meaning of Rule 405 under the Securities Act,
acquires the Exchange Securities in the ordinary course of such Holder's
business and has no arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing the
Exchange Securities) to trade such Exchange Securities from and after
their receipt without any limitations or restrictions under the
Securities Act and without material restrictions under the securities
laws of a substantial proportion of the several states of the United
States.
(i) In connection with the Exchange Offer, the
Company shall:
(A) mail to each Holder a copy of the
Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal
and related documents;
(B) keep the Exchange Offer open for not
less than 30 Business Days (or longer if required by applicable
federal and state securities laws) after the date notice thereof
is mailed to the Holders;
(C) use the services of the Depositary for
the Exchange Offer with respect to Securities evidenced by
global certificates;
(D) permit Holders to withdraw tendered
Registrable Securities at any time prior to the close of
business, New York City time, on the last Business Day on which
the Exchange Offer shall remain open, by sending to the
institution specified in the notice, a telegram, telex,
facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Securities delivered
for exchange, and a statement that such Holder is withdrawing
its election to have such Securities exchanged;
(E) prior to effectiveness of the Exchange
Offer Registration Statement, if requested or required by the
Commission, provide a supplemental letter to the Commission (1)
stating that the Company is conducting the Exchange Offer in
reliance on the position of the Commission in Exxon Capital
Holdings Corporation (pub. avail. May 13, 1988) and Xxxxxx
Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991); and (2)
including a representation that the Company has not entered into
any arrangement or understanding with any person to distribute
the Exchange Securities to be received in the Exchange Offer and
that, to the best of the Company's information and belief, each
Holder participating in the Exchange Offer is acquiring the
Exchange Securities in the ordinary course of business and has
no arrangement or understanding with any person to participate
in the distribution of the Exchange Securities; and
5
(F) otherwise comply in all material
respects with all applicable federal and state securities laws
relating to the Exchange Offer.
(ii) As soon as practicable after the close of the
Exchange Offer, the Company shall:
(A) accept for exchange Registrable
Securities duly tendered and not validly withdrawn pursuant to
the Exchange Offer in accordance with the terms of the Exchange
Offer Registration Statement and the letter of transmittal which
is an exhibit thereto;
(B) deliver, or cause to be delivered, to
the Trustee for cancellation all Registrable Securities so
accepted for exchange by the Company;
(C) cause the Trustee promptly to
authenticate and deliver Exchange Securities to each Holder of
Registrable Securities equal in principal amount to the
principal amount of the Registrable Securities of such Holder so
accepted for exchange. Interest on each Exchange Security will
accrue from the last date on which interest was paid on the
Registrable Securities surrendered in exchange therefor or, if
no interest has been paid on the Registrable Securities, from
the Closing Date. The Exchange Offer shall not be subject to any
conditions, other than (i) that the Exchange Offer, or the
making of any exchange by a Holder, does not violate applicable
law or any applicable interpretation of the staff of the SEC,
(ii) that no action or proceeding shall have been instituted or
threatened in any court or before any governmental agency with
respect to the Exchange Offer which, in the judgment of the
Company, would impair the ability of the Company to proceed with
the Exchange Offer, (iii) that no law, rule or regulation or
applicable interpretations of the staff of the SEC has been
issued or promulgated which, in the good faith determination of
the Company, does not permit the Company to effect the Exchange
Offer and (iv) that the Holders tender the Registrable
Securities to the Company in accordance with the Exchange Offer;
and
(D) deliver notice to each Holder of
Registrable Securities who does not exchange such Registrable
Securities for Exchange Securities that the Registrable
Securities will continue to be entitled to the benefits of the
Indenture governing the Registrable Securities but such
Registrable Securities will no longer be entitled to any further
registration rights under the registration rights agreement,
except under limited circumstances.
Each Holder of Registrable Securities (other than Participating
Broker-Dealers) who wishes to exchange such Registrable Securities for
Exchange Securities in the Exchange Offer shall have represented that
(i) it is not an affiliate (as defined in Rule 405 under the Securities
Act) of the Company or, if it is an affiliate, it will comply with the
registration and prospectus delivery requirements of the Securities Act,
to the extent applicable, (ii) any Exchange Securities to be received by
it will be acquired in the ordinary course of business, (iii) at the
time of the commencement of the Exchange Offer,
6
it has no arrangement with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Securities or the
Exchange Securities, (iv) it is not acting on behalf of any person who
could not truthfully make the foregoing representations and (v) it shall
have made such other representations as may be reasonably necessary
under applicable SEC rules, regulations or interpretations to render the
use of Form S-4 or another appropriate form under the Securities Act
available or for the Exchange Offer Registration Statement to be
declared effective. To the extent permitted by law, the Company shall
inform the Initial Purchasers of the names and addresses of the Holders
to whom the Exchange Offer is made, and the Initial Purchasers shall
have the right to contact such Holders and otherwise facilitate the
tender of Registrable Securities in the Exchange Offer.
(b) Shelf Registration. (i) If, because of any change in law
or applicable interpretations thereof by the staff of the SEC, the
Company is not permitted to effect the Exchange Offer as contemplated by
Section 2(a) hereof, (ii) if for any other reason the Exchange Offer
Registration Statement is not declared effective within 150 calendar
days following the Closing Date or the Exchange Offer is not consummated
within 200 calendar days after the Closing Date (provided that, if the
Exchange Offer Registration Statement shall be declared effective after
such 150-day period or if the Exchange Offer shall be consummated after
such 200-day period, then the Company's obligations under this clause
(ii) arising from the failure of the Exchange Offer Registration
Statement to be declared effective within such 150-day period or the
failure of the Exchange Offer to be consummated within such 200-day
period, respectively, shall terminate), (iii) if any Holder (other than
an Initial Purchaser) is not eligible to participate in the Exchange
Offer or elects to participate in the Exchange Offer but does not
receive fully tradeable Exchange Securities pursuant to the Exchange
Offer or (iv) upon the written request of any of the Initial Purchasers
within 90 days following the consummation of the Exchange Offer;
provided that such Initial Purchaser shall hold Registrable Securities
that it acquired directly from the Company and that such Initial
Purchaser is not permitted, in the reasonable opinion of counsel to such
Initial Purchaser, pursuant to applicable law or applicable
interpretation of the staff of the SEC, to participate in the Exchange
Offer, the Company shall, at its cost:
(A) as promptly as practicable, but no later
than the 30th calendar day after such filing obligation arises,
use commercially reasonable efforts to file with the SEC a Shelf
Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by the
Majority Holders of such Registrable Securities and set forth in
such Shelf Registration Statement;
(B) use commercially reasonable efforts to
cause such Shelf Registration Statement to be declared effective
by the SEC as promptly as practicable; provided that, with
respect to Exchange Securities received by a broker-dealer in
exchange for any securities that were acquired by such
broker-dealer as a result of market-making or other trading
activities, the Company may, if permitted by current
interpretations by the staff of the SEC, file a post-effective
amendment to the Exchange Offer Registration Statement
containing the
7
information required by Regulation S-K Items 507 and/or 508, as
applicable, in satisfaction of its obligations under paragraph
(A) solely with respect to broker-dealers who acquired their
Securities as a result of market-making or other trading
activities, and any such Exchange Offer Registration Statement,
as so amended, shall be referred to herein as, and governed by
the provisions herein applicable to, a Shelf Registration
Statement. In the event that the Company is required to file a
Shelf Registration Statement upon the request of any Holder
(other than an Initial Purchaser) not eligible to participate in
the Exchange Offer pursuant to clause (iii) above or upon the
request of any Initial Purchaser pursuant to clause (iv) above,
the Company shall file and use commercially reasonable efforts
to have declared effective by the SEC both an Exchange Offer
Registration Statement pursuant to Section 2(a) with respect to
all Registrable Securities and a Shelf Registration Statement
(which may be a combined Registration Statement with the
Exchange Offer Registration Statement) with respect to offers
and sales of Registrable Securities held by such Holder or such
Initial Purchaser, as applicable, after completion of the
Exchange Offer;
(C) use commercially reasonable efforts to
keep the Shelf Registration Statement continuously effective,
supplemented and amended as required, in order to permit the
Prospectus forming part thereof to be usable by Holders for a
period of two years, plus any extensions as provided in Section
2(d)(iii) below, after its effective date or such shorter period
which will terminate when all of the Registrable Securities
covered by the Shelf Registration Statement (i) have been sold
pursuant to the Shelf Registration Statement, (ii) cease to be
outstanding or (iii) become eligible for resale pursuant to Rule
144 under the Exchange Act without volume restrictions; and
(D) notwithstanding any other provisions
hereof, ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming a part thereof and
any supplement thereto complies in all material respects with
the Securities Act and the rules and regulations thereunder,
(ii) any Shelf Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement
of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading and (iii) any Prospectus forming part of any
Shelf Registration Statement, and any supplement to such
Prospectus (as amended or supplemented from time to time), does
not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements,
in light of the circumstances under which they were made, not
misleading; provided, however, clauses (ii) and (iii) shall not
apply to any information relating to any Initial Purchaser or
any Holder furnished to the Company in writing by such Initial
Purchaser or Holder expressly for use in the Shelf Registration
Statement.
The Company shall not permit any securities other than the Registrable
Securities to be included in the Shelf Registration Statement.
8
The Company further agrees, if necessary, to supplement or amend the
Shelf Registration Statement if reasonably requested by the Majority Holders
with respect to information relating to the Holders and otherwise as required by
Section 3(b) below, to use commercially reasonable efforts to cause any such
amendment to become effective and such Shelf Registration Statement to become
usable as soon as practicable thereafter and to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration
Expenses in connection with the registration pursuant to Sections 2(a)
and 2(b) and, in the case of any Shelf Registration Statement, will
reimburse the Holders or the Initial Purchasers for the reasonable fees
and disbursements of one counsel designated in writing by the Majority
Holders to act as counsel for the Holders of the Registrable Securities
in connection therewith; provided that, upon the request of the Company,
the Holders or the Initial Purchasers provide the Company with
reasonable documentation evidencing such fees and disbursements. Each
Holder shall pay all expenses of its counsel other than as set forth in
the preceding sentence, underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such
Holder's Registrable Securities pursuant to a Shelf Registration
Statement.
(d) Effective Registration Statement.
(i) The Company shall be deemed not to have used
commercially reasonable efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as
the case may be, to become, or to remain, effective during the
requisite periods set forth herein if the Company voluntarily
takes any action that could reasonably be expected to result in
any such Registration Statement not being declared effective or
remaining effective or in the Holders of Registrable Securities
covered thereby not being able to exchange or offer and sell
such Registrable Securities during that period unless (A) such
action is required by applicable law or (B) such action is taken
by the Company in good faith and for valid business reasons (but
not including avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets or a material
corporate transaction or event so long as the Company promptly
complies with the requirements of Section 3(k) hereof, if
applicable.
(ii) An Exchange Offer Registration Statement
pursuant to Section 2(a) hereof or a Shelf Registration
Statement pursuant to Section 2(b) hereof shall not be deemed to
have become effective unless it has been declared effective by
the SEC; provided, however, that if, after it has been declared
effective, the offering of Registrable Securities pursuant to a
Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement shall
be deemed not to have been effective during the period of such
interference, until the offering of Registrable Securities
pursuant to such Registration Statement may legally resume.
9
(iii) During any 365-day period, the Company may
suspend the availability of a Shelf Registration Statement and
the use of the related Prospectus, as provided in Section
3(e)(vi) and the last paragraph of Section 3 hereof (a "Material
Event Election"), for up to 4 periods of up to 45 consecutive
days (except for the consecutive 45-day period immediately prior
to maturity of the Securities), but no more than an aggregate of
90 days during any 365-day period, if any event shall occur (A)
as set forth in Section 2(d)(i) or (B) as a result of which it
shall be necessary, in the good faith determination of the board
of directors of the Company, to amend the Shelf Registration
Statement or amend or supplement any prospectus or prospectus
supplement thereunder in order that each such document not
include any untrue statement of fact or omit to state a material
fact necessary to make the statements therein not misleading in
light of the circumstances under which they were made, provided
that any period during which the Company requires Holders to
refrain from disposing of their Registrable Securities due to a
Material Event Election (an "Election Period") shall be deemed
to trigger the obligation of the Company to pay additional
interest in accordance with Section 2(e) to the extent that such
Election Period, together with all other days that the Shelf
Registration Statement has become unusable in any consecutive
twelve-month period, exceeds 90 days in the aggregate. The
Two-Year Period provided for in Section 2(b)(i)(C) above shall
be extended by an amount of time equal to all such Election
Periods.
(e) Increase in Interest Rate. In the event that (i) the
Exchange Offer Registration Statement is not filed with the SEC on or
prior to the 90th calendar day after the Closing Date, (ii) the Exchange
Offer Registration Statement is not declared effective on or prior to
the 150th calendar day after the Closing Date, (iii) the Exchange Offer
is not consummated on or prior to the 200th calendar day following the
Closing Date, or (iv) if required, a Shelf Registration Statement with
respect to the Registrable Securities is not declared effective on or
prior to the 200th calendar day after the Closing Date, or (v) the
Election Periods exceed, in the aggregate, 90 days during any 365-day
period (each, a "Registration Default"), the per annum interest rate
borne by the Registrable Securities affected thereby shall be increased
by one-quarter of one percent (0.25%) per annum following a Registration
Default; provided that the maximum aggregate additional interest with
respect to a series may in no event exceed one-quarter of one percent
(0.25%) per annum. Upon (w) the filing of the Exchange Offer
Registration Statement after the 90-day period described in clause (i)
above, (x) the effectiveness of the Exchange Offer Registration
Statement after the 150-day period described in clause (ii) above, (y)
the consummation of the Exchange Offer after the 200-day period
described in clause (iii) above, or (z) the effectiveness of a Shelf
Registration Statement, after the 200-day period described in clause
(iv) above, the interest rate borne by such series of Registrable
Securities from the date of such filing, effectiveness or consummation,
as the case may be, shall be reduced to the original interest rate if
the Company is otherwise in compliance with this paragraph; provided,
however, that, if after any such reduction in interest rate, a different
Registration Default occurs, the interest rate shall again be increased
pursuant to the foregoing provisions. No increase in the rate under
clause (i), (ii) or (iii) above shall be payable for any period during
which a Shelf Registration is effective.
10
(f) Specific Enforcement. Without limiting the remedies
available to the Initial Purchasers and the Holders, the Company
acknowledges that any failure by the Company to comply with its
obligations under Sections 2(a) and 2(b) hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for which
there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of
any such failure, the Initial Purchasers or any Holder may obtain such
relief as may be required to specifically enforce the Company's
obligations under Sections 2(a) and 2(b).
3. Registration Procedures. In connection with the obligations of
the Company with respect to the Registration Statements pursuant to Sections
2(a) and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement,
within the time periods specified in Section 2, on the appropriate form
under the Securities Act, which form (i) shall be selected by the
Company, (ii) shall, in the case of a Shelf Registration Statement, be
available for the sale of the Registrable Securities by the selling
Holders thereof and (iii) shall comply as to form in all material
respects with the requirements of the applicable form and include or
incorporate by reference all financial statements required by the SEC to
be filed therewith, and use commercially reasonable efforts to cause
such Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period; cause each Prospectus to be
supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act;
and comply with the provisions of the Securities Act with respect to the
disposition of all Securities covered by each Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities, at least 15 Business Days prior to
filing, that a Shelf Registration Statement with respect to the
Registrable Securities is being filed and advising such Holders that the
distribution of Registrable Securities will be made in accordance with
the method elected by the Majority Holders; (ii) furnish to each Holder
of Registrable Securities, to counsel for the Initial Purchasers, to
counsel for the Holders and to each underwriter of an underwritten
offering of Registrable Securities, if any, without charge, as many
copies of each Prospectus, including each preliminary Prospectus, and
any amendment or supplement thereto and such other documents as such
Holder or underwriter, or their counsel, may reasonably request,
including financial statements and schedules and, if the Holder so
reasonably requests, all exhibits (including those incorporated by
reference) in order to facilitate the public sale or other disposition
of the Registrable Securities; and (iii) subject to the last paragraph
of this Section 3, hereby consent to the use of the Prospectus,
including each preliminary Prospectus, or any amendment or supplement
thereto by each of the selling Holders of Registrable Securities in
connection with the
11
offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto;
(d) use commercially reasonable efforts to register or
qualify the Registrable Securities under all applicable state securities
or "blue sky" laws of such jurisdictions as any Holder of Registrable
Securities covered by a Registration Statement and each underwriter of
an underwritten offering of Registrable Securities shall reasonably
request by the time the applicable Registration Statement is declared
effective by the SEC, to cooperate with the Holders in connection with
any filings required to be made with the NASD, keep each such
registration or qualification effective during the period such
Registration Statement is required to be effective and do any and all
other acts and things which may be reasonably necessary to enable such
Holder to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided, however, that the
Company shall not be required to (i) qualify as a foreign corporation or
as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d) or (ii) take
any action which would subject it to general service of process or
taxation in any such jurisdiction;
(e) in the case of a Shelf Registration, notify each Holder
of Registrable Securities and counsel for such Holders promptly and, if
requested by such Holder or counsel, confirm such advice in writing
promptly (i) when a Registration Statement has become effective and when
any post-effective amendments and supplements thereto become effective,
(ii) of any request by the SEC or any state securities authority for
post-effective amendments and supplements to a Registration Statement
and Prospectus or for additional information after the Registration
Statement has become effective, (iii) of the issuance by the SEC or any
state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to such offering
cease to be true and correct in all material respects, (v) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, (vi) of the happening of any event or the discovery of
any facts during the period a Shelf Registration Statement is effective
(including as contemplated in Section 2(d)(iii) hereof) which (A) is
contemplated in Section 2(d)(i) or (B) makes any statement made in such
Shelf Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such
Shelf Registration Statement or Prospectus in order to make the
statements therein not misleading and (vii) of any determination by the
Company that a post-effective amendment to a Registration Statement
would be appropriate;
(f) (A) in the case of an Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution" section
covering the use of the Prospectus included in the Exchange Offer
Registration Statement by broker-dealers who have exchanged their
Registrable Securities for Exchange Securities for the resale of such
12
Exchange Securities, (ii) furnish to each broker-dealer who desires to
participate in the Exchange Offer, without charge, as many copies of
each Prospectus included in the Exchange Offer Registration Statement,
including any preliminary prospectus, and any amendment or supplement
thereto, as such broker-dealer may reasonably request, (iii) include in
the Exchange Offer Registration Statement a statement that any
broker-dealer who holds Registrable Securities acquired for its own
account as a result of market-making activities or other trading
activities (a "Participating Broker-Dealer"), and who receives Exchange
Securities for Registrable Securities pursuant to the Exchange Offer,
may be a statutory underwriter and must deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such
Exchange Securities, (iv) subject to the last paragraph of this Section
3, hereby consent to the use of the Prospectus forming part of the
Exchange Offer Registration Statement or any amendment or supplement
thereto, by any broker-dealer in connection with the sale or transfer of
the Exchange Securities covered by the Prospectus or any amendment or
supplement thereto, and (v) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer the following provision:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to
engage in, a distribution of Exchange Securities. If the
undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Registrable
Securities, it represents that the Registrable Securities to be
exchanged for Exchange Securities were acquired by it as a
result of market-making activities or other trading activities
and acknowledges that it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale
of such Exchange Securities pursuant to the Exchange Offer;
however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act;"
(B) to the extent any Participating
Broker-Dealer participates in the Exchange Offer, the Company
shall use commercially reasonable efforts to cause to be
delivered at the request of an entity representing the
Participating Broker-Dealers (which entity shall be Xxxxxxx
Xxxxx Xxxxxx Inc., unless it elects not to act as such
representative) any "cold comfort" letters with respect to the
Prospectus in the form existing on the last date for which
exchanges are accepted pursuant to the Exchange Offer and with
respect to each subsequent amendment or supplement, if any,
effected during the period specified in clause (C) below;
(C) to the extent any Participating
Broker-Dealer participates in the Exchange Offer, the Company
shall use commercially reasonable efforts to maintain the
effectiveness of the Exchange Offer Registration Statement for a
period of 200 days following the closing of the Exchange Offer
or such shorter period which will terminate when the
Participating Broker-Dealers have completed all resales subject
to applicable prospectus delivery requirements; and
13
(D) the Company shall not be required to
amend or supplement the Prospectus contained in the Exchange
Offer Registration Statement as would otherwise be contemplated
by Section 3(b) hereof, or take any other action as a result of
this Section 3(f), following the 200th day after the last date
for which exchanges are accepted pursuant to the Exchange Offer
(as such period may be extended by the Company) and
Participating Broker-Dealers shall not be authorized by the
Company to, and shall not, deliver such Prospectus after such
date in connection with resales contemplated by this Section 3;
(g) (i) in the case of an Exchange Offer, furnish counsel
for the Initial Purchasers and (ii) in the case of a Shelf Registration,
furnish counsel for the Holders of Registrable Securities copies of any
request by the SEC or any state securities authority for amendments or
supplements to a Registration Statement and Prospectus or for additional
information and the Company's responses to any such request;
(h) make commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of a Registration
Statement as soon as practicable and provide immediate notice to each
Holder of the withdrawal of any such order;
(i) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, without charge, at least one conformed
copy of each Registration Statement and any post-effective amendment
thereto (without documents incorporated therein by reference or exhibits
thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and cause
such Registrable Securities to be in such denominations (consistent with
the provisions of the Indenture) in a form eligible for deposit with the
Depositary and registered in such names as the selling Holders or the
underwriters, if any, may reasonably request in writing at least one
Business Day prior to the closing of any sale of Registrable Securities;
(k) in the case of a Shelf Registration, upon the occurrence
of any event or the discovery of any facts, each as contemplated by
Section 3(e)(vi) hereof, use commercially reasonable efforts to prepare
a supplement or post-effective amendment to a Registration Statement or
the related Prospectus or any document incorporated therein by reference
or file any other required document so that, as thereafter delivered to
the purchasers of the Registrable Securities, such Prospectus will not
contain at the time of such delivery any 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. The Company agrees to notify each Holder to suspend use of
the Prospectus as promptly as practicable after the occurrence of such
an event, and each Holder hereby agrees to suspend use of the Prospectus
until the Company has amended or supplemented the Prospectus to correct
such misstatement or omission. At such time as such public disclosure is
otherwise made or the Company determines that such disclosure is not
necessary, in each case to correct any misstatement of a material fact
or to include
14
any omitted material fact, the Company agrees promptly to notify each
Holder of such determination and to furnish each Holder such numbers of
copies of the Prospectus, as amended or supplemented, as such Holder may
reasonably request;
(l) obtain CUSIP numbers, ISINs and common codes for all
Exchange Securities, or Registrable Securities, as the case may be, not
later than the effective date of a Registration Statement, and provide
the Trustee with printed certificates for the Exchange Securities or
Registrable Securities, as the case may be, in a form eligible for
deposit with the Depositary;
(m) in the case of a Shelf Registration, enter into
agreements (including underwriting agreements) and take all other
customary and appropriate actions (including those reasonably requested
by the Majority Holders of the Registrable Securities) in order to
expedite or facilitate the disposition of such Registrable Securities
and in such connection, whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration, in a manner that is reasonable and customary:
(i) make such representations and warranties to the
Holders of such Registrable Securities and the underwriters, if
any, in form, substance and scope as are customarily made by
issuers to underwriters in similar underwritten offerings as may
be reasonably requested by such Holders and underwriters;
(ii) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriters, if any, and the Holders of a majority in principal
amount of the Registrable Securities being sold) addressed to
each selling Holder and the underwriters, if any, covering the
matters customarily covered in opinions requested in sales of
securities or underwritten offerings and such other matters as
may be reasonably requested by such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates
thereof from the Company's independent certified public
accountants addressed to the underwriters, if any, and will use
commercially reasonable efforts to have such letters addressed
to the selling Holders of Registrable Securities, such letters
to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters to underwriters in
connection with similar underwritten offerings;
(iv) enter into a securities sales agreement with the
Holders and an agent of the Holders providing for, among other
things, the appointment of such agent for the selling Holders
for the purpose of soliciting purchases of Registrable
Securities, which agreement shall be in form, substance and
scope customary for similar offerings;
(v) if an underwriting agreement is entered into in
the case of an underwritten offering, cause the same to set
forth indemnification provisions and
15
procedures substantially equivalent to the indemnification
provisions and procedures set forth in Section 5 hereof with
respect to the underwriters and all other parties to be
indemnified pursuant to Section 5 hereof; and
(vi) deliver such documents and certificates as may
be reasonably requested by the underwriters or the Holders and
as are customarily delivered in similar offerings.
The above shall be done at (i) the effectiveness of such Registration
Statement (and, if appropriate, each post-effective amendment thereto) and (ii)
each closing under any underwriting or similar agreement as and to the extent
required thereunder. In the case of any underwritten offering, the Company shall
provide written notice to the Holders of all Registrable Securities of such
underwritten offering at least thirty days prior to the filing of a prospectus
supplement for such underwritten offering. Such notice shall (x) offer each such
Holder the right to participate in such underwritten offering, (y) specify a
date, which shall be no earlier than ten Business Days following the date of
such notice, by which such Holder must inform the Company of its intent to
participate in such underwritten offering and (z) include the instructions such
Holder must follow in order to participate in such underwritten offering;
(n) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Registrable
Securities and any underwriters participating in any disposition
pursuant to a Shelf Registration Statement and any U.S. counsel or
accountant retained by such Holders or underwriters, all financial and
other records, pertinent corporate documents and properties of the
Company reasonably requested by any such Persons, and cause the
respective officers, directors, employees, and any other agents of the
Company to supply all information reasonably requested by any such
representative, underwriter, special counsel or accountant in connection
with a Registration Statement; provided, however, that the
foregoing inspection and information gathering shall be coordinated on
behalf of the Initial Purchasers by Xxxxxxx Xxxxx Barney Inc. and on
behalf of the other parties by one counsel designated by the holders of
a majority of the Registrable Securities who shall be approved by the
Company, such approval not to be unreasonably withheld, and provided
further that any such records, documents, properties and such
information that is designated in writing by the Company, in good faith,
as confidential at the time of delivery of such records, documents,
properties or information shall be kept confidential by any such
representative, underwriter, counsel or accountant and shall be used
only in connection with such Shelf Registration Statement, unless such
information has become available (not in violation of this Agreement) to
the public generally or through a third party without an accompanying
obligation of confidentiality, and except that such representative,
underwriter, counsel or accountant shall have no liability, and shall
not be in breach of this provision, if disclosure of such confidential
information is made in connection with a court proceeding or required by
law, and the Company shall be entitled to request that such
representative, underwriter, counsel or accountant sign a
confidentiality agreement to the foregoing effect. Each such person will
be required to agree that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as
the basis for any market transactions in the securities of the Company
unless and until such is made generally available to the public
16
through no fault or action of such person. Each selling Holder of such
Registrable Securities will be required to further agree that it will,
upon learning that disclosure of confidential information is necessary,
give notice to the Company to allow the Company at its expense to
undertake appropriate action to prevent disclosure of the confidential
information;
(o) (i) in the case of an Exchange Offer, a reasonable time
prior to the filing of any Exchange Offer Registration Statement, any
Prospectus forming a part thereof, any amendment to an Exchange Offer
Registration Statement or amendment or supplement to a Prospectus,
provide copies of such document to the Initial Purchasers, and make such
changes in any such document prior to the filing thereof as the Initial
Purchasers or their counsel may reasonably request, provided that such
changes in any such document are provided to the Company in a timely
manner with respect to the filing date; (ii) in the case of a Shelf
Registration, a reasonable time prior to filing any Shelf Registration
Statement, any Prospectus forming a part thereof, any amendment to such
Shelf Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Holders of
Registrable Securities, to the Initial Purchasers, to counsel on behalf
of the Holders and to the underwriter or underwriters of an underwritten
offering of Registrable Securities, if any, and make such changes in any
such document prior to the filing thereof as counsel to the Initial
Purchasers, the Holders or any underwriter may reasonably request,
provided that such changes in any such document are provided to the
Company in a timely manner with respect to the filing date; and (iii) of
cause the representatives of the Company to be available for discussion
such document as shall be reasonably requested by the Holders of
Registrable Securities, the Initial Purchasers on behalf of such Holders
or any underwriter, and shall not at any time make any filing of any
such document of which such Holders, the Initial Purchasers on behalf of
such Holders, their counsel or any underwriter shall not have previously
been advised and furnished a copy or to which such Holders, the Initial
Purchasers on behalf of such Holders, their counsel or any underwriter
shall reasonably object within a reasonable time period;
(p) in the case of a Shelf Registration, use commercially
reasonable efforts to cause the Registrable Securities to be rated with
the appropriate rating agencies, if so requested by the Majority Holders
or by the underwriter or underwriters of an underwritten offering,
unless the Registrable Securities are already so rated;
(q) otherwise use commercially reasonable efforts to comply
with all applicable rules and regulations of the SEC and make available
to its security holders, as soon as reasonably practicable, an earnings
statement covering at least twelve months which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder; and
(r) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation
by any underwriter and its counsel.
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Securities to
17
furnish to the Company or its counsel such information regarding such Holder and
the proposed distribution by such Holder of such Registrable Securities, as the
Company may from time to time reasonably request, and agree in writing to be
bound by the Agreement, including the indemnification provisions.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event or the
discovery of any facts, each of the kind described in Sections 2(d)(i) and
3(e)(ii)-(vii) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder's
receipt of (i) the copies of the supplemented or amended Prospectus contemplated
by Section 3(k) hereof or (ii) written notice from the Company that the Shelf
Registration Statement is once again effective and that no supplement or
amendment is required. If so directed by the Company, such Holder will deliver
to the Company (at the Company's expense) all copies in its possession, other
than permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice.
If the Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to a Shelf Registration Statement as a result of
the happening of any event or the discovery of any facts, each of the kind
described in Sections 2(d)(i) and 3(e)(vi) hereof, the Company shall be deemed
to have used commercially reasonable efforts to keep the Shelf Registration
Statement effective during such period of suspension; provided that (i) such
period of suspension shall not exceed the time periods provided in Section
2(d)(iii) hereof and (ii) the Company shall, if necessary, use commercially
reasonable efforts to file and have declared effective (if an amendment) as soon
as practicable an amendment or supplement to the Shelf Registration Statement
and shall extend the period during which the Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days during the
period from and including the date of the giving of such notice to and including
the date when the Holders shall have received copies of the supplemented or
amended Prospectus necessary to resume such dispositions.
4. Underwritten Registrations. If any of the Registrable Securities
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Company and shall be reasonably
acceptable to the Majority Holders of such Registrable Securities included in
such offering.
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Initial Purchaser, each Holder, including Participating Broker-Dealers,
each underwriter who
18
participates in an offering of Registrable Securities, their respective
affiliates, and their respective directors, officers, employees, agents,
and each Person, if any, who controls any Initial Purchaser or any
Holder within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by the Initial Purchaser,
any Holder or any such controlling or affiliated Person in connection
with defending or investigating any such action or claim) caused by any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or any amendment thereof,
pursuant to which Exchange Securities or Registrable Securities were
registered under the Securities Act, including all documents
incorporated therein by reference, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or caused by
any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact
necessary to make the statements therein in light of the circumstances
under which they were made not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Initial Purchaser or any Holder furnished to
the Company in writing by such Initial Purchaser or by or relating to
any Holder or underwriter who participates in an offering of Registrable
Securities, in each case expressly for use therein; provided, however,
that the Company shall not be liable to any such Holder, Participating
Broker-Dealer or controlling person, with respect to any untrue
statement or alleged untrue statement or omission or alleged omission in
any preliminary prospectus to the extent that any such loss, liability,
claim, damage or expense of any Holder, Participating Broker-Dealer or
controlling person to whom there was not sent or given, at or prior to
the written confirmation of such sale, a copy of the final Prospectus as
then amended or supplemented, if the Company had previously furnished
copies thereof to such Holder, Participating Broker-Dealer or
controlling person and the loss, liability, claim, damage or expense of
such Holder, Participating Broker-Dealer or controlling person results
from an untrue statement or omission of a material fact contained in the
preliminary prospectus that was corrected in the final Prospectus.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, each Initial Purchaser, each
underwriter who participates in an offering of Registrable Securities,
and the other selling Holders, and each of their respective directors
and officers (including each director and officer of the Company who
signed the Registration Statement) and each Person, if any, who controls
the Company, any Initial Purchaser, any underwriter or any other selling
Holder within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any
legal or other expenses described in the indemnity contained in Section
5(a), as incurred), but only with reference to information relating to
such Holder furnished to the Company in writing by such Holder expressly
for use in any Registration Statement or any amendment thereof or any
Prospectus or any amendments or supplements thereto.
19
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of
which indemnity may be sought pursuant to either paragraph (a) or
paragraph (b) above, such Person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought
(the "indemnifying party") in writing (but the failure to so notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party except to the extent it is materially
prejudiced or harmed) and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees and
expenses of more than one separate firm (in addition to any local
counsel) for the Initial Purchasers and all Persons, if any, who control
any Initial Purchaser within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, (b) the fees and
expenses of more than one separate firm (in addition to any local
counsel) for the Company, its respective directors, its respective
officers who sign the Registration Statement and all Persons, if any,
who control the Company within the meaning of either such Section and
(c) the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Holders and all Persons, if any, who control
any Holders within the meaning of either such Section, and that all such
fees and expenses shall be reimbursed as they are incurred. In the case
of any such separate firm for the Initial Purchasers and such control
Persons of the Initial Purchasers, such firm shall be designated in
writing by Xxxxxxx Xxxxx Xxxxxx Inc. In the case of any such separate
firm for the Holders and such Persons who control Holders, such firm
shall be designated in writing by the Majority Holders. In all other
cases, such firm shall be designated in writing by the Company. The
indemnifying party shall not be liable for any settlement of any
proceeding affected without its written consent, but if settled with
such consent or if there is a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior
to the date of such settlement. No indemnifying party shall, without the
prior written consent of the
20
indemnified party, which consent shall not be unreasonably withheld,
effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party,
unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such proceeding and (ii) does not include a statement as to an
admission of fault, culpability or failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 5 is unavailable to an indemnified party
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph,
in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities in such proportion
as is appropriate to reflect the relative fault of the indemnifying
party or parties on the one hand and of the indemnified party or parties
on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative fault of such
indemnifying party or parties on the one hand and the indemnified party
or parties on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by such indemnifying party or
parties or such indemnified party or parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The obligations of the Initial
Purchasers and the Holders of Registrable Securities to contribute
pursuant to this Section 5 are several in proportion to the respective
number of Securities have purchased hereunder, and not joint.
(e) The Company, the Initial Purchasers, and each Holder of
Registrable Securities agree that it would not be just or equitable if
contribution pursuant to this Section 5 were determined by pro rata
allocation (even if the Initial Purchasers were treated as one entity
for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph
(d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in
paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 5, no Holder shall be required to indemnify or contribute
any amount in excess of the amount by which the total price at which
Registrable Securities were sold by such Holder exceeds the amount of
any damages that such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 5, each Person, if any,
who controls an Initial Purchaser or Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall
have the same rights to contribution as such Initial
21
Purchaser or Holder, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each Person, if
any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company. The remedies provided for in this
Section 5 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in
equity.
The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Initial Purchaser or any Holder, or any Person controlling any Initial
Purchaser or any Holder, or by or on behalf of the Company, its officers or
directors or any Person controlling the Company, (iii) acceptance of any of the
Exchange Securities and (iv) any sale of Registrable Securities pursuant to a
Shelf Registration Statement.
6. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is
subject to the reporting requirements of Section 13 or 15 of the
Exchange Act, the Company covenants that it will file the reports
required to be filed by it under Section 13(a) or 15(d) of the Exchange
Act and the rules and regulations adopted by the SEC thereunder, that if
it ceases to be so required to file such reports, it will upon the
request of any Holder of Registrable Securities (i) make publicly
available or cause to be made publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the Securities Act,
(ii) deliver or cause to be delivered such information to a prospective
purchaser as is necessary to permit sales pursuant to Rule 144A under
the Securities Act and it will take such further action as any Holder of
Registrable Securities may reasonably request, and (iii) take such
further action that is reasonable in the circumstances, in each case, to
the extent required from time to time to enable such Holder to sell its
Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (x) Rule 144 under
the Securities Act, as such Rule may be amended from time to time, (y)
Rule 144A under the Securities Act, as such Rule may be amended from
time to time, or (z) any similar rules or regulations hereafter adopted
by the SEC. Upon the written request of any Holder of Registrable
Securities, the Company will deliver to such Holder a written statement
as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered
into nor will the Company on or after the date of this Agreement enter
into any agreement which is inconsistent with the rights granted to the
Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's other issued and
outstanding securities under any such agreements.
(c) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to departures
from the material provisions hereof may not be given unless the Company
has obtained the written consent of the Majority Holders of the
22
outstanding Registrable Securities affected by such amendment,
modification, supplement, waiver or departure.
(d) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telecopier, or any courier guaranteeing
overnight delivery (i) if to a Holder (other than an Initial Purchaser),
at the most current address set forth on the records of the Registrar
under the Indenture, (ii) if to an Initial Purchaser, at the most
current address given by such Initial Purchaser to the Company by means
of a notice given in accordance with the provisions of this Section
6(d), which address initially is the address set forth in the Purchase
Agreement; and (iii) if to the Company, initially at its respective
addresses set forth in the Purchase Agreement and thereafter at such
other addresses, notice of which are given in accordance with the
provisions of this Section 6(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if telecopied; and on the next Business Day if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors, assigns and
transferees of each of the parties, including, without limitation and
without the need for an express assignment, subsequent Holders; provided
that nothing herein shall be deemed to permit any assignment, transfer
or other disposition of Registrable Securities in violation of the terms
hereof or of the Purchase Agreement or the Indenture. If any transferee
of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Securities, such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement, including the restrictions
on resale set forth in this Agreement and, if applicable, the Purchase
Agreement, and such Person shall be entitled to receive the benefits
hereof.
(f) Third Party Beneficiary. Subject to the provisions of
Section 6(c) hereof, the Holders shall be third party beneficiaries to
the agreements made hereunder between the Company on the one hand, and
the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of Holders
hereunder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement.
23
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
regard to its conflict of laws provisions.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect
and of the remaining provisions contained herein shall not be affected
or impaired thereby.
[Signatures on next page]
24
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
XXX XXXXXXXXXXX
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and Chief
Financial Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written:
XXXXXXX XXXXX XXXXXX INC.
BANC ONE CAPITAL MARKETS, INC.
BNY CAPITAL MARKETS, INC.
FLEET SECURITIES, INC.
X.X. XXXXXX SECURITIES INC.
MCDONALD INVESTMENTS INC.
By: XXXXXXX XXXXX BARNEY INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Managing Director
For itself and the other Initial Purchasers
25
