EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
------------------------------------------
CALENERGY COMPANY, INC.
$225,000,000 9 1/2% Senior Notes
due 2006
September 20, 1996
CS FIRST BOSTON CORPORATION
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the issue and sale of $225,000,000 principal
amount of 9 1/2% Senior Notes due 2006 (the "Securities") issued by CalEnergy
Company, Inc., a Delaware corporation (the "Company") pursuant to the terms of
the Indenture (as defined below) and as an inducement to CS First Boston
Corporation (the "Initial Purchaser") to enter into the Purchase Agreement
dated September 18, 1996 (the "Purchase Agreement") between the Company and
the Initial Purchaser, the Company hereby agrees to provide the registration
rights set forth in this Exchange and Registration Rights Agreement (this
"Agreement") for the benefit of the holders of the Securities. The execution
of this Agreement is a condition to the purchase of the Securities under the
Purchase Agreement.
Section 1. Definitions. Capitalized terms used herein without
definition shall have the respective meanings ascribed thereto, whether
expressly or by reference to another agreement or document, in the Indenture.
The definitions set forth in this Agreement shall equally apply to both the
singular and plural forms of the terms defined. As used in this Agreement, the
following terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of
Section 5 of this Agreement.
"Affiliate", with respect to any Person, shall mean any other Person
that directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with such first Person. The term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities or by contract or otherwise. For
purposes of Section 2, an "Affiliate" of the Company shall mean and include,
in addition, any Person deemed an affiliate thereof under the Securities Act
or the Exchange Act in connection with the Exchange Offer.
"Closing Date" shall mean the date of the initial issuance and sale
of the Securities.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Company" shall have the meaning set forth in the first paragraph of
this Agreement.
"Cure Date" shall have the meaning set forth in Section 4(a) of this
Agreement.
"Effective Date" shall mean the date which is 270 days after the
Closing Date.
"Effective Period" shall have the meaning set forth in Section 3(a)
of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Offer" shall have the meaning set forth in Section 2(a) of
this Agreement.
"Exchange Offer Registration Statement" shall have the meaning set
forth in Section 2(a) of this Agreement.
"Exchange Period" shall have the meaning set forth in Section 2(a) of
this Agreement.
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"Exchange Securities" shall have the meaning set forth in Section
2(a) of this Agreement.
A "holder" of Registrable Securities shall mean the registered holder
of such securities or any beneficial owner thereof.
"Holder Indemnified Party" shall have the meaning set forth in
Section 8(a) of this Agreement.
"Holder Information" shall have the meaning set forth in Section 8(a)
of this Agreement.
"Illiquidity Event" with respect to the Securities shall mean any of
the following events:
(a) as of the Effective Date, both (i) an Exchange Offer Registration
Statement (which, if applicable pursuant to Section 2(a), covers resales
of such Exchange Securities) has not become effective and (ii) the
Registrable Securities are not the subject of an Initial Shelf
Registration State ment which has become effective; or
(b) the Exchange Securities offered in exchange for Registrable
Securities are the subject of an Exchange Offer Registration Statement
which was effective (and which, if applicable pursuant to Section 2(a),
covered resales of such Exchange Securities) but which ceased to be
effective for any reason prior to the end of the Exchange Period; or
(b) Registrable Securities are the subject of an Initial Shelf
Registration Statement or Subsequent Shelf Registration Statement which
was effective but which has ceased to be effective for any reason prior to
the end of the Effective Period.
An Illiquidity Event shall be deemed to cease to exist on the date
subsequent to the occurrence of such Illiquidity Event on which:
(i) in the case of an Illiquidity Event described in clause (a)
above either (i) an Exchange Offer Registration Statement (which, if
applicable pursuant to Section 2(a), covers resales of the Exchange
Securities exchanged for such Registrable
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Securities) shall become effective and an Exchange Offer for such
Registrable Securities shall have commenced or (ii) an Initial Shelf
Registration Statement covering such Registrable Securities shall become
effective; or
(ii) in the case of an Illiquidity Event described in clause (b)
above, either (i) an Exchange Offer Registration Statement (which, if
applicable pursuant to Section 2(a), covers resales of the Exchange
Securities offered in exchange for such Securities) shall become effective
and an Exchange Offer for such Registrable Securities shall have commenced
pursuant to an Exchange Offer Registration Statement or (ii) an Initial
Shelf Registration Statement covering such Registrable Securities shall
become effective; or
(iii) in the case of an Illiquidity Event described in clause (c)
above, a Subsequent Shelf Registration Statement covering such Registrable
Securities shall become effective.
"Indenture" shall mean the Trust Indenture dated as of September 20,
1996, and as amended or supplemented from time to time in accordance with the
terms thereof, between the Company and the Trustee, and pursuant to which the
Securities are to be issued.
"Initial Purchaser Securities" means Securities acquired by the
Initial Purchaser as part of its initial distribution, and which at the time
of the Exchange Offer, are still held by the Initial Purchaser.
"Initial Purchaser" shall have the meaning set forth in the first
paragraph of this Agreement.
"Initial Shelf Registration Statement" shall have the meaning set
forth in Section 3(a) of this Agreement.
"Inspectors" shall have the meaning set forth in Section 5(m) of this
Agreement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an
Underwritten Offering.
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"NASD" shall mean the National Association of Securities Dealers,
Inc.
"Private Exchange" shall have the meaning set forth in Section 2(a).
"Private Exchange Securities" shall have the meaning set forth in
Section 2(a).
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, and
all other amendments and supplements to the Prospectus, including
post-effective amendments and all material incorporated by refer ence into
such prospectus.
"Purchase Agreement" shall have the meaning set forth in the first
paragraph of this Agreement.
"Records" shall have the meaning set forth in Section 5(m) of this
Agreement.
"Registrable Securities" shall mean the Securities upon original
issuance thereof (including Initial Purchaser Securities), and any Private
Exchange Security at all times subsequent thereto until, in the case of any
such Security, (i) a Registration Statement covering such Security, or the
Exchange Security to be exchanged for such Security (and, in the case of any
Resale Security, any resale thereof), has been declared effective and such
Security has been disposed of or exchanged (or, in any case where such
Registration Statement covers the resale of Resale Securities, such Security
has been exchanged and the Resale Security received therefor has been resold),
as the case may be, in accordance with such effective Registration Statement,
(ii) it is sold in compliance with Rule 144 or would be permitted to be sold
pursuant to Rule 144(k), (iii) it shall have been otherwise transferred and a
new certificate for any such Security not bearing a legend restricting further
transfer shall have been delivered by or on behalf of the Company and such
Security shall be tradeable by each holder thereof without re striction under
the Securities
5
Act or the Exchange Act and without material restriction under the applicable
blue sky or state securities laws or (iv) it ceases to be outstanding.
"Registration Statement" shall mean any registration statement
(including any Shelf Registration Statement) of the Company that covers any of
the Registrable Securities or the Exchange Securities, as the case may be,
pursuant to the provisions of this Agreement, including the Prospectus which
is part of such Registration Statement, amendments (including post-effective
amendments) and supplements to such Registration State ment and all exhibits
and appendices to any of the foregoing. For purposes of the foregoing, unless
the context requires otherwise, a Registration Statement for an Exchange Offer
shall not be deemed to cover Registrable Securities held by a Re stricted
Person unless such Registration Statement covers the resale of Resale
Securities to be received by such Restricted Person pursuant to such Exchange
Offer and any such Securities shall continue to be Registrable Securities.
"Resale Initial Purchaser" shall have the meaning set forth in
Section 8(a) of this Agreement.
"Resale Securities" shall mean any Exchange Security received by a
Restricted Person pursuant to an Exchange Offer, and at all times subsequent
thereto, until, subject to the time periods set forth herein, such Exchange
Security has been resold by such Restricted Person.
"Restricted Person" shall mean (a) any Affiliate of the Company, (b)
the Initial Purchaser or (c) any Affiliate of the Initial Purchaser (other
than Affiliates of the Initial Purchaser that (i) are acquiring Exchange
Securities in the ordinary course of business and do not have an arrangement
with any Person to distribute Exchange Securities and (ii) may trade such
Exchange Securities without restriction under the Securities Act).
"Rule 144" shall mean Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission.
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"Rule 144A" shall mean Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Rule 415" shall mean Rule 415 under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission.
"Securities" shall have the meaning set forth in the first paragraph
of this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Shelf Notice" shall have the meaning set forth in Section 2(b) of
this Agreement.
"Shelf Registration Statement" shall have the meaning set forth in
Section 3(b) of this Agreement.
"Special Counsel" shall mean Skadden, Arps, Slate, Xxxxxxx & Xxxx,
special counsel to the Initial Purchaser, or any other firm acceptable to the
Company, acting as special counsel to the holders of Registrable Securities or
Exchange Securities.
"Subsequent Shelf Registration Statement" shall have the meaning set
forth in Section 3(b) of this Agreement.
"TIA" shall mean the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Trustee" shall mean IBJ Xxxxxxxx Bank & Trust Company, its
successors and any successor trustee under the Indenture.
"Underwritten Registration" or "Underwritten Offering" shall mean a
registration in which securities are sold to an underwriter or group of
underwriters for reoffering to the public.
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Section 2. Exchange Offer.
(a) Unless the Company determines in good faith that the Exchange
Offer shall not be permissible under applicable law or Commission policy, the
Company shall prepare and cause to be filed with the Commission as soon as
reasonably practicable after the Closing Date, subject to Sections 2(b) and
2(c) of this Agreement, a Registration Statement (an "Exchange Offer
Registration Statement") for an offer to exchange (an "Exchange Offer") the
Registrable Securities other than Initial Purchaser Securities (subject to
Section 2(c)) for a like aggregate princi pal amount of debt securities of the
Company that are in all material respects substantially identical to the
Securities (the "Exchange Securities") (and which are entitled to the benefits
of the Indenture, which shall be qualified under the TIA in connection with
such registration or a trust indenture which is substantially identical in all
material respects to the Inden ture), other than (i) such changes to the
Indenture or any such substantially identical indenture as the Trustee and the
Company may deem necessary in connection with the Trustee's rights and duties
or to comply with any requirements of the Commission to effect or maintain the
qualification thereof under the TIA and (ii) such changes relating to
restrictions on transfer set forth in the Indenture. The Exchange Offer shall
be registered under the Securities Act on the appropriate form of Registration
Statement and shall comply with all applicable tender offer rules and
regulations under the Exchange Act and with all other applicable laws. Subject
to the terms and limitations of Section 2(c), such Exchange Offer Registration
Statement may also cover any resales of Exchange Securities by any Restricted
Person, in the manner or manners designated by them which, in any event, is
reasonably acceptable to the Company.
If, upon consummation of the Exchange Offer, the Initial Purchaser
holds Initial Purchaser Securities, the Company, simultaneously with the
delivery of the Exchange Securities pursuant to the Exchange Offer, shall
issue and deliver to the Initial Purchaser upon the written request of the
Initial Purchaser, and the delivery of the Initial Purchaser Securities to the
Company, in exchange (the "Private Exchange") for the Initial Purchaser
Securities, a like amount of debt securities of the Company issued under the
Indenture and identical in all
8
material respects (including the existence of restrictions on transfer under
the Securities Act and the secu rities law of the several states of the United
States) to the Securities (the "Private Exchange Securities").
The Company shall use its reasonable best efforts to (i) cause the
Exchange Offer Registration Statement to become effective under the Securities
Act on or prior to the Effective Date, (ii) keep the Exchange Offer open for a
period of not less than the shorter of (A) the period ending when the last
remaining Security is tendered into the Exchange Offer and (B) 30 days from
the date notice is mailed to the holders of Securities (provided that in no
event shall such period be less than the period required under applicable
Federal and state securities laws), and (iii) maintain such Exchange Offer
Registration Statement continuously effective for a period (the "Exchange
Period") of not less than the longer of (A) the period until the consummation
of the Exchange Offer and (B) 120 days after effectiveness of the Exchange
Offer Registration Statement, provided however, that in the event that all
resales of Exchange Securities (including, subject to the time periods set
forth herein, any Resale Securi ties and including, subject to the time
periods set forth herein, any resales by broker-dealers that receive Exchange
Securities for their own account pursuant to the Exchange Offer) covered by
such Exchange Offer Registration Statement have been made, the Exchange Offer
Registration Statement need not remain continuously effective for the period
set forth in clause (B) above. Upon consummation of the Exchange Offer, the
Company shall deliver to the Trustee under the Indenture for cancellation all
Securities tendered by the holders thereof pursuant to the Exchange Offer and
not withdrawn prior to the Consummation Date. Each Restricted Person shall
notify the Company promptly after reselling all Resale Securities held by such
Restricted Person which are covered by any such Registration Statement.
Each holder of Registrable Securities to be exchanged in the Exchange
Offer (other than any Restricted Person) shall be required as a condition to
participating in the Exchange Offer to represent that (i) it is not an
Affiliate of the Company, (ii) any Exchange Securities to be received by it
shall be acquired in the ordinary course of its business and (iii) that at the
9
time of the consummation of the Exchange Offer it shall have no arrangement
with any person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Securities. Upon consummation of an Exchange
Offer in accordance with this Section 2 and compliance with the other
provisions of this Section 2, the Company shall, subject to Sections 2(b) and
2(c), have no further obligation to register Registrable Secu rities pursuant
to Section 3(a) of this Agreement; provided that the other provisions of this
Agreement shall continue to apply as set forth in such provisions.
(b) In the event that the Company reasonably deter mines in good
faith that (i) the Exchange Securities would not, upon receipt in the Exchange
Offer by any holder of Registrable Securities (other than (x) any Restricted
Person (including the Initial Purchaser as holder of Initial Purchaser
Securities), and (y) any holder who is not acquiring such Exchange Securities
in the ordinary course of business or who has an arrangement with any person
to participate in the distribution of such Exchange Securities) be tradeable
by each holder thereof without re striction under the Securities Act and the
Exchange Act and without restriction under applicable blue sky or state
securities laws, (ii) after conferring with counsel, the Commission is un
likely to permit the Exchange Offer Registration Statement to become effective
prior to the Effective Date (except in the circumstances set forth in Section
2(c)) or (iii) the Exchange Offer may not be made in compliance with
applicable laws, then the Company shall promptly deliver notice thereof (the
"Shelf No xxxx") to the holders of such Registrable Securities and the Trustee
and shall thereafter file an Initial Shelf Registration Statement pursuant to,
and otherwise comply with, the provisions of Section 3(a). Following the
delivery of a Shelf Notice in accordance with this Section 2(b) and compliance
with Section 3(a), the Company shall not have any further obligation under
this Section 2.
(c) In the event that (i) at the time of the Exchange Offer there are
outstanding any Initial Purchaser Securities, or (ii) the Company reasonably
determines in good faith that (x) the Exchange Securities would not, upon
consummation of any resale thereof by a Restricted Person to any Person other
than another Restricted Person, be tradeable by each holder thereof without
restric-
10
tion under the Securities Act (other than applicable prospectus requirements)
and the Exchange Act and without re striction under applicable blue sky or
state securities laws or (y) the Commission is unlikely to permit the Exchange
Offer Registration Statement to become effective prior to the Effective Date
solely because such Registration Statement covers resales of the Exchange
Securities by Restricted Persons, then the Company shall promptly deliver a
Shelf Notice to the Restricted Persons who are holders of Registrable
Securities and the Trustee, and the Company shall thereafter file an Initial
Shelf Registration Statement with respect to any such Registrable Securities
pursuant to, and otherwise comply with, the provisions of Section 3(a);
provided that such Initial Shelf Registration Statement shall only cover
resales of Registrable Securities by Restricted Persons if a Shelf Notice is
not then otherwise required to be delivered pursuant to Section 2(b) and
provided further that such Initial Shelf Registration Statement covering
Registrable Securities held by Restricted Persons shall be kept effective for
at least a period of 120 days and is not required to remain effec tive with
respect to such Registrable Securities held by Restricted Persons thereafter.
Following the delivery of a Shelf Notice in accordance with this Section 2(c)
and compliance with Section 3(a), the Company shall not have any further
obligation under this Section 2 with respect to the filing of an offer to
exchange the Registrable Securities held by the Restricted Per sons
(including, without limitation, any obligation to provide that an Exchange
Offer Registration Statement filed pursuant to Section 2(a) cover resales of
Exchange Securities by Restricted Persons); provided that the provisions of
this Section 2 shall otherwise remain in full force and effect with respect to
Registrable Securities held by any person other than a Restricted Person.
Section 3. Shelf Registration; Registrable Securities. With respect
to the Registrable Securities, if a Shelf Notice is delivered in accordance
with Section 2(b) or (c) of this Agreement, then the Company shall comply with
the following provisions of this Section 3:
(a) Initial Shelf Registration. The Company shall prepare and cause
to be filed with the Commission a Registration Statement for an offering to be
made on a continuous basis other than pursuant to an Underwritten Offer
pursuant to Rule 415 covering all of the Xxxxxxxx-
00
ble Securities (or, if a Shelf Notice is delivered solely pursuant to Section
2(c), all of the Regis trable Securities held by any Restricted Persons) (the
"Initial Shelf Registration Statement"); provided, however, that no holder
shall be entitled to have its Registrable Securities covered by such Initial
Shelf Registration Statement unless such holder agrees in writing, within 10
Business Days after actual receipt of a request therefrom, to be bound by all
the provisions of this Agreement applicable to such a holder. No holder shall
be entitled to the benefits of Section 4 of this Agreement unless and until
such holder shall have provided all information reason ably requested by the
Company (after conferring with counsel), and such holder shall not be entitled
to such benefits with re spect to any period during which such information was
not provided. Each holder to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such holder not materially misleading. The Initial Shelf
Registration State ment shall be an appropriate form permitting registration
of such Registrable Securities for resale by the holders thereof in the manner
or manners reasonably designated by them (but excluding any Underwritten
Offerings). The Company shall use its reasonable best efforts to (A) cause
the Initial Shelf Registration Statement to be declared effective under the
Securities Act on or prior to the Effective Date and (B) keep the Initial
Shelf Registration Statement continuously effective under the Securities Act
for a period of three years after the Closing Date (subject to extension
pursuant to the last paragraph of Section 5 and subject, with respect to
Registrable Securities held by Restricted Persons, to the limitations set
forth in Section 2(c)) (such three-year period, as it may be extended, being
the "Ef fective Period"), or such shorter period ending when (1) all
Registrable Securities covered by the Initial Shelf Registration Statement
have been sold or (2) a Subsequent Shelf Registration Statement covering all
of such Registrable Securities remaining unsold has been declared effective
under the Securities Act or (3) all Registrable Securities may be sold
pursuant to subsection (k) of Rule 144.
Notwithstanding any other provision hereof, the Company may postpone
or suspend the filing or the effectiveness of a Registration Statement (or any
amendments
12
or supplements thereto), if (1) such action is required by applicable law, or
(2) such action is taken by the Company in good faith and for valid business
reasons (not including avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets, other pending corporate
developments, public filings with the Commission or other similar events, so
long as the Company promptly thereafter complies with the requirements of
Section 5(b) hereof, if applicable. Notwithstanding the occurrence of any
event referred to in the immediate preceding sentence (a "Suspension"), such
event shall not suspend, postpone or in any other manner affect the running of
the time period after which an Illiquidity Event shall be deemed to occur and,
if the filing or effectiveness of the Registration Statement is postponed or
suspended as a result of a Suspension, an Illiquidity Event shall nonetheless
exist if all other requirements set forth for the occurrence of an Illiquidity
Event shall be satisfied, and the provisions of Section 4 requiring the
accrual payment of additional interest, as set forth in such Section, on the
Registrable Securities, shall be applicable.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration
Statement or any Subsequent Shelf Registration Statement ceases to be
effective for any reason at any time during the Effective Period after the
Effective Date, the Company may attempt to obtain the withdrawal of any order
suspending the effectiveness thereof, and may amend such Initial Shelf
Registration Statement or Subsequent Shelf Registration Statement in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional "shelf" Registration Statement
applicable to the Securities pursuant to Rule 415 covering all of such
Registrable Securities remaining unsold (a "Subsequent Shelf Registration
Statement"). If a Subsequent Shelf Registration Statement is declared
effective, the Company shall use its reasonable best efforts to keep such Shelf
Registration Statement continuously effective for a period after the date of
such effectiveness equal in length to the length of the Effective Period plus
the aggregate number of days from the date of the order suspending the
effectiveness of the Initial Shelf Registration Statement or any Subsequent
Shelf Registration Statement to the date of the effectiveness of the
Subsequent Shelf Registration Statement. As used herein, the
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term "Shelf Registration Statement" means the Initial Shelf Registration
Statement and any Subsequent Shelf Registration Statement.
Section 4. Additional Interest for Illiquidity.
(a) The Company acknowledges and agrees that the Initial Purchaser
(and any subsequent holders of the Securities) in reliance on the Company's
covenant to use its reasonable best efforts to (i) cause to become effective
on or prior to the Effective Date (A) the Exchange Offer Registration
Statement or (B) an Initial Shelf Registration Statement, and (ii) maintain
the respective effectiveness of such Registration Statements as described
herein. The Company further acknowledges and agrees that the failure of the
Company to fulfill such covenants will have an adverse effect on the holders
of the Securities. There fore, the Company agrees that from and after the date
on which any Illiquidity Event occurs, additional interest (in addition to the
interest otherwise payable with respect to the Registrable Securities) shall
accrue with respect to the Securities until but not including the date on
which such Illiquidity Event shall cease to exist (and provided no other
Illiquidity Event with respect to any Securities shall then be continuing), at
the rate of one half of one percent (0.50%) per annum, which additional
interest shall be payable by the Company to the holders of all Securities at
the times, in the manner and subject to the same terms and conditions set
forth in the Indenture, as nearly as may be, as though the interest rates
provided in such Securities had been increased by one half of one percent
(0.50%) per annum. Notwithstanding that the Illiquidity Event may cease to
exist, in the event that an Exchange Offer Registration Statement or an
Initial Shelf Registration Statement has not become effective within two years
after the Closing Date, the interest rates on the Securities otherwise payable
as provided in the Indenture shall permanently remain increased by such one
half of one percent (0.50%) per annum. Subject to the provisions of this
Section 4, the Company agrees that it shall be liable to the holders of all
Securities for the payment of any and all addi tional interest on the
Securities that shall accrue pursuant to this Section 4.
14
Any such additional interest accrued on any such Securities but
unpaid on the date on which such interest ceases to accrue (the "Cure Date")
shall be due and payable on the first interest payment date following the next
record date following such Cure Date (or the record date occurring on such
Cure Date, if such Cure Date is a record date) to the holders of record of
such Securities on such record date.
(b) The Company shall promptly notify the holders of the Securities
and the Trustee of the occurrence of any Illiquidity Event of which it has
knowledge.
Notwithstanding the foregoing, the Company shall not be required to
pay the additional interest described in clause (a) of this Section 4 to a
holder with respect to the Registrable Securities held by such holder if the
applicable Illiquidity Event arises by reason of the failure of such holder to
provide such information (i) the Company may reasonably request, with
reasonable prior written notice, for use in the Shelf Registration Statement
or any Prospectus included therein to the extent the Company reasonably
determines that such information is required to be included therein by
applicable law, (ii) the NASD or the Commission may request in connection with
such Shelf Registration Statement, or (iii) is required to comply with the
agreements of such holder contained in clause (a) of Section 3 to the extent
compliance thereof is necessary for the Shelf Registration Statement to be
declared effective.
Section 5. Registration Procedures. In connection with the
registration of any Registrable Securities or Exchange Securities pursuant to
Sections 2 and 3 hereof, the Company shall use its reasonable best efforts to
effect such registration to permit the sale of such Registrable Securities or
Exchange Securities in accordance with any permitted intended method or
methods of disposition thereof, and pursuant thereto the Company shall:
(a) prepare and cause to be filed with the Commission a Registration
Statement or Registration Statements as prescribed by Sections 2 and 3 of this
Agreement, and use its best efforts to cause each such Registration Statement
to become effective and remain effective for the applicable period as provided
herein;
15
provided, however, that (i) during the period in which the initial
Registration Statement is open for the Restricted Persons, the Company shall
afford any Restricted Person which is a holder of Registrable Securities or
Exchange Securities and the Special Counsel, upon such holder's written
request to the Company, an opportunity to review copies of all such documents
pro posed to be filed, and (ii) if such filing is pursuant to Section 3,
before filing any Registration Statement or Prospectus or any amendments or
supplements thereto (including documents that would be incorporated therein by
reference after the initial filing of the Registration Statement), the Company
shall afford the Special Counsel for all holders of the Registrable Securities
covered by such Registration Statement an opportunity to review copies of all
such documents proposed to be filed;
(b) prepare and cause to be filed with the Commission such amendments
and post-effective amendments to each Shelf Registration Statement as may be
necessary to keep such Registration Statement continuously effective for the
applicable period as provided herein; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 (or any similar provisions then in force) under
the Securities Act; and comply with the provisions of the Securities Act, the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder with respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so supplemented
in accordance with the intended methods of disposition by the sellers of
Registrable Securities covered thereby set forth therein;
(c) if a Shelf Registration Statement is filed pursuant to Section 3
hereof, notify the selling holders of Registrable Securities promptly after
the Company becomes aware thereof, and confirm such notice in writing, (i)
when a Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the Commission for amendments or supplements to the Registration
Statement or the Prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness
16
of a Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus or Prospectus or the initiation of any
proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of a Registration Statement or any of the Registrable
Securities for offer or sale in any jurisdiction, or the initiation of any
proceeding for such purpose, (v) of the existence of any fact known to the
Company which results in such Registration Statement or related Prospectus or
any document incorporated therein by reference containing any untrue statement
of a material fact or omitting to state any 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 (which notice may be
accompanied by an instruction that such notice constitutes material non-public
information and to suspend the use of the prospectus until the requisite
changes have been made, and which instruction shall require that such holders
shall not communicate such material non-public information to any third party
and shall not sell or purchase, or offer to sell or pur chase, any securities
of the Company after receipt of such notice) and (vi) if the Company
reasonably determines that the filing of a post-effective amendment to such
Registration Statement would be appropriate;
(d) if a Shelf Registration Statement is filed pursuant to Section 3,
use its reasonable efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending the qualification (or
exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction and, if any such order is issued, to obtain the withdrawal of
any such order at the earliest possible moment;
(e) if a Shelf Registration Statement is filed pursuant to Section
3, furnish to each selling holder of Registrable Securities who so requests
(at such holder's address set forth in the Securities Register) without
charge, one conformed copy of the Registration Statement or Registration
Statements and each post-effective amendment thereto, including financial
statements and sched-
17
ules, all documents incorporated therein by reference and all exhibits
(including those incorporated by reference);
(f) if a Shelf Registration Statement is filed pursuant to Section 3,
deliver to each selling holder of Registrable Securities without charge, as
many copies of the Pro spectus (including each preliminary prospectus) and
each amendment or supplement thereto as such persons may reasonably request;
and, subject to the last paragraph of this Section 5, the Company hereby
consents to the use of such Prospectus and each amendment or supplement
thereto by each of the selling holders of Registrable Securities and the
underwriters, if any, in connection with the offering and sale of the
Registrable Secu rities covered by such Prospectus and any amendment or
supplement thereto;
(g) prior to any public offering of Registrable Securities, register
or qualify, or cooperate with the selling holders of Registrable Securities,
the underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions within the United States as
the selling holders reasonably request in writing (provided that, if Registrable
Securities are offered other than through an Underwritten Offering, the Company
agrees to cause its counsel to perform blue sky investigations and
file registrations and qualifications required to be filed pursuant to this
Section 5(g)); keep each such registration or qualification (or exemption
therefrom) effective during the period such Regis tration Statement is
required to be kept effective; and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the applicable Registration Statement;
provided, however, that the Company will not be required to qualify as a
foreign corporation, or to do business, to file a general consent or take any
action which would subject it to service of process in any jurisdiction or
take any action which would subject itself to taxation in any such
jurisdiction;
(g) if a Shelf Registration Statement is filed pursuant to Section 3,
cooperate with the Trustee, and the selling holders of Registrable Securities
to facili-
18
xxxx the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for deposit with The
Depository Trust Company, and enable such Registrable Securities to be in such
authorized denominations and registered in such names as the holders may
reasonably request at least three business days prior to any such sale;
(i) if a Shelf Registration Statement is filed pursuant to Section 3,
upon the occurrence of any event contemplated by Section 5(c), prepare a
supplement or post-effective amendment to the Registration Statement or a
supplement to 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 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. If the Company so notifies the
holders to suspend the use of the Prospectus after the occurrence of such an
event, the holders shall suspend use of the Prospectus, and not communicate
such material non-public information to any third party, and not sell or
purchase, or offer to sell or purchase, any securities of the Company, until
the Company has amended or supplemented the Prospectus to correct such
misstatement or omission;
(j) use its reasonable best efforts to cause the Registrable
Securities covered by the Registration Statement to continue to be rated by
the rating agencies that initially rated the Securities during the period that
the Registration Statement is required hereunder to remain effective (it being
acknowledged, however, that the foregoing shall not be deemed to require the
Company to maintain the rating of such Registrable Securities at the rating
given the Securities);
(k) prior to the effective date of the first Registration Statement
relating to the Registrable Securities or the Exchange Securities, as the case
may be, (i) provide the Trustee with printed certificates for such securities
in definitive form or in a global form eligible for deposit with The
Depository Trust Company and (ii) provide a CUSIP number for such Registrable
19
Securities or Exchange Securities represented by such certificates;
(l) if a Shelf Registration Statement is filed pursu ant to Section
3, enter into such reasonably required agreements and take all other
appropriate actions in order to expedite or facilitate the registration or the
disposition of such Regis trable Securities;
(m) in the event of any Underwritten Offering (which shall only be
undertaken at the option of the Company), if a Shelf Registration Statement is
filed pursuant to Section 3, make available prior to the filing thereof for
inspection by a representative of the holders of a majority in aggregate
principal amount of the Registrable Securities being sold, and the Special
Counsel, on the one hand, or underwriter on the other hand (collectively, the
"Inspectors"), during reasonable business hours, all financial and other
records, pertinent corporate docu ments and properties of the Company and its
subsidiaries (collec tively, the "Records"), and cause the officers, directors
and em ployees of the Company and its subsidiaries to supply all relevant
information as shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities; provided, however, that, as a
condition to supplying such information, the Company shall receive an
agreement in writing from the Special Counsel agreeing that any information
that is designated in writing by the Company, in good faith, as confidential
at the time of delivery of such information shall be kept confidential by such
Inspector (other than as to holders of Registrable Securities) and by any
holders of Registrable Securities receiving such information, unless (i)
disclosure of such information is required pursuant to applicable law or by
court or administrative order, (ii) disclosure of such information is, in the
reasonable opinion of counsel to the Company, necessary to avoid or correct a
misstatement or omission of a material fact in the Registration Statement,
Prospectus, or any supplement or post-effective amendment thereto or
disclosure is otherwise re quired by law, (iii) such information becomes
generally available to the public other than as a result of a disclosure by
any Inspector or any such holder of Registrable Securities in violation of
this Section 5(m) or (iv) such information is approved for release by the
Company, in writing;
20
(n) use its best efforts to cause the Indenture or the trust
indenture provided for in Section 2, as the case may be, to be qualified under
the TIA not later than the effective date of such Registration Statement; and,
in connection therewith, cooperate with the Trustee under such Indenture and
the holders of the Registrable Securities to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and execute, and use its best efforts to
cause such Trustee to execute all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the
Commission to enable the Indenture to be so qualified in a timely manner;
(o) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission.
For purposes of the covenants set forth in this Section 5, references
to a Shelf Registration Statement, including a Shelf Registration Statement
filed pursuant to Section 3, shall be deemed to include any Registration
Statement, filed pursuant to Section 2, which covers, for the period set forth
therein, resales of Exchange Securities held by Restricted Persons as provided
in Section 2, and, in connection with such resales such Restricted Persons
shall be entitled to exercise all rights, receive all notices and copies of
documents, and otherwise re ceive all benefits afforded to sellers or holders
of Registrable Securities under this Section 5 in connection with a Shelf
Registration Statement. Without limiting the generality of the foregoing, the
Company agrees to fulfill its obligations set forth in Sections 5(a), (b),
(c), (d), (e), (f), (h), (i), (l), and (m) with respect to any such
Registration Statement filed pursuant to Section 2 insofar as it covers such
resales.
The Company may require each seller of Registrable Securities as to
which any registration is being effected, as a condition thereto, to furnish
to the Company such information regarding the holder and the distribution of
such Registrable Securities as the Company may, from time to time, request in
writing, including without limitation stating that (i) it is not an Affiliate
of the Company, (ii) the amount of Registrable Securities held by such holder
prior to the Exchange Offer,
21
(iii) the amount of Registrable Securities owned by such holder to be
exchanged in the Exchange Offer and representing that such holder is not engaged
in, and does not intend to engage in, and has no arrangement or understanding
with any Person to participate in, a distribution of the Exchange Securities
to be issued, and (iv) it is acquiring the Exchange Securities in its ordinary
course of business and to covenant and agree to promptly notify the Company if
any such information so provided by such seller ceases to be true and correct
and will promptly thereafter furnish the Company with corrected information.
The Company may exclude from such registration the Registrable Securities of
any Person who fails to furnish such information within a reasonable time
after receiving such request.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 5(c)(ii),
5(c)(iii), 5(c)(v) or 5(c)(vi) hereof, such holder shall forthwith discontinue
disposition of such Registrable Securities covered by such Registration
Statement or Prospectus until such holder is advised in writing (the "Advice")
by the Company that the use of the applicable Prospectus may be resumed, and
has received copies of any amendments or supplements thereto and, if so
directed by the Company, such holder will deliver to the Company (at its
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, or certify in
writing as to the destruction thereof. In the event the Company shall give any
such notice, the length of the Effective Period shall be extended by the
number of days during such period from and including the date of the giving of
such notice to and including the date when each seller of Registrable
Securities covered by such Registration Statement shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 5(i)
or (y) the Advice.
Section 6. Delivery of Prospectus; Notification Upon Resale. The
Initial Purchaser acknowledges that it is the position of the staff of the
Commission that any broker-dealer that receives Exchange Securities for its
own account in exchange for Registrable Securi-
22
ties pursuant to the Exchange Offer must deliver a prospectus in connection
with any resale of such Resale Securities. By so acknowledging, such Initial
Purchaser shall not be deemed to admit that, by delivering a prospectus, it is
an underwriter within the meaning of the Securities Act.
The Initial Purchaser shall notify the Company promptly upon the
completion of the resale of the Resale Securities received by such Initial
Purchaser pursuant to the Exchange Offer.
Section 7. Registration Expenses.
The Company shall bear all expenses incurred in connection with the
performance of its obligations under Sections 2, 3 and 4; provided, however,
that the Company shall bear or reimburse the holders for the reasonable fees
and disbursements of only one counsel, the Special Counsel, in accordance with
the terms of the Purchase Agreement; provided, further, however, that if the
Company permits an Underwritten Offering, the Company shall not be responsible
for any fees and expenses of any under writer including any underwriting
discounts and commissions or any legal fees and expenses of counsel to the
underwriters (except for the reasonable fees and disbursements of counsel in
connection with state securities or Blue Sky qualification of any of the
Registrable Securities or the Exchange Securities).
Section 8. Indemnification and Contribution.
(a) The Company agrees to (A) indemnify and hold harm less each
holder of Registrable Securities (including the Initial Purchaser which holds
Registrable Securities, including Resale Securities, for its own account)
(each, a "Resale Initial Purchaser") and each person, if any, who controls any
such person within the meaning of either the Securities Act or the Exchange
Act and each director, officer, employee or agent of each such Person (each a
"Holder Indemnified Party") against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them are subject under
the Securities Act, the Exchange Act, or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof,) arise out of
or are
23
based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement covering Registrable Securities
held by such person or any Prospectus relating to any such Registration
Statement, or any amendment thereof or supplement thereto and all documents
incorporated by reference therein, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary in
order to make the statements therein, in light of the circumstances in which
they were made, not misleading, and (B) reimburse each such Holder Indemnified
Party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liabil ity or action as such expenses are incurred; provided, however, that
the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made in such Registration Statement or Prospectus, or in any amendment
thereof or sup plement thereto, in reliance upon and in conformity with
written information relating to such holder provided by such holder to the
Company by any holder specifically for use therein (collectively, the "Holder
Information"); provided, further, however, that the indemnity obligations
arising out of this Section 8 with respect to any untrue statement or alleged
untrue statement or omission or alleged omission made in any preliminary
Prospectus shall not inure to the benefit of any holder or any controlling
Person of such holder if such holder failed to send or deliver to the Person
asserting any such losses a copy of the final Prospectus with or prior to the
delivery of the written confirmation of the sale of the Registrable Securities
or the Exchange Securities, as the case may be, and such final Prospectus
would have cured the untrue statement or omission giving rise to such losses.
This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) As a condition to the inclusion of a holder's Registrable
Securities in a Registration Statement, such holder shall agree to (i)
indemnify and hold harmless the Company and each person who controls the
Company within the meaning of either the Securities Act or the Exchange Act,
and each director, officer, employee or agent of each such person, against any
and all losses,
24
claims, damages or liabilities, joint or several, to which they or any of them
are subject under the Securities Act, the Exchange Act, or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in a Registration Statement covering
Registrable Securities held by such holder or any Prospectus relating to any
such Registration Statement or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact necessary in order to make the statements there in, in
light of the circumstances in which they were made, not misleading, and (ii)
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
in each and every case under clause (i) and (ii) above to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in such Registration Statement or
Prospectus in any amendment thereof or supplement thereto, in reliance upon
and in conformity with the Holder Information provided by such holder. This
indemnity agreement will be in addition to any liability which any such
holder may otherwise have. In no event shall the liability of any selling
holder of Registrable Securities hereunder be greater in amount than the
dollar amount of the proceeds (net of payment of all expenses) received by
such holder upon the sale (or, in the case of Resale Securities, the resale)
of the Registrable Securities giving rise to such indemnification obligation.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 8, notify the indemnifying party in writing of the commencement
thereof (enclosing a copy of all papers served); but the omission to so notify
the indemnifying party (i) shall not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of such
action and such omission results in the forfeiture by the indemnifying party
or material impairment of substantial rights and defenses and (ii) shall not,
in any event, relieve the
25
indemnifying party from any obligations to any indemnified party other than
the indemnifi cation obligations provided in paragraph (a) or (b) above. In
case any such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified
party. After notice from the indemnifying party to such indemnified party of
its election to so assume the defense of such claim or action, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than costs of
investigation; provided that if (i) the defendants in any such action include
both the indemnified party and the indemnifying party, the indemnified party
shall have received the written opinion of counsel reasonably acceptable to
the indemnifying party that representation of both parties by the same counsel
would be inappropriate due to actual or likely conflicts of interest between
them, or (ii) the indemnifying party shall not have employed counsel for the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action, then the indemnified party or
parties shall have the right to select one firm of separate counsel to assert
any separate legal defenses and to otherwise defend such action on behalf of
such indemnified party or parties. No indemnifying party shall be liable for
any settlement of any action or claim for monetary damages which an
indemnified party may effect without the written consent of the indemnifying
party, which consent shall not be unreasonably withheld.
(d) If the indemnification provided for in Section 8(a) or (b) hereof
is for any reason, other than as specified in such provisions, unavailable to
or insufficient to hold harmless an indemnified party, then each indemnifying
party shall contribute to the aggregate losses, claims, damages or liabilities
(or actions in respect thereof) referred to in Section 8(a) or (b) hereof in
such proportion as is appropriate to reflect the relative fault and benefits
to the Company on the one hand and such holders on the other hand in
connection
26
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof) as well as any other
relevant equitable considerations. The relative fault of the Company and such
holders shall be determined by reference to, among other things, the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent any untrue statement or omission. The obligations of the holders in
this Section 8(d) are several in proportion to their respective obligations
hereunder and not joint. Notwithstanding the provisions of this Section 8(d),
in no event shall any holder of Registrable Securities be required to
contribute any amount which is in excess of (i) the aggregate principal amount
of Securities sold or exchanged by such holder less (ii) the amount of any
damages that such person has otherwise been required to pay by reason of such
alleged untrue statement or 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 8, each Holder
Indemnified Party shall have the same rights to contribution as a holder, and
each person who controls the Company within the meaning of either the
Securities Act or the Exchange Act and each officer, director, employee and
agent of such person, shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
Section 8(d). Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party
or parties under this Section 8(d), notify such party or parties from whom
contribution may be sought; but the omission to so notify such party or
parties (x) shall not relieve the party or parties from whom contribution may
be sought from any liability under this paragraph (d) unless and to the extent
it did not otherwise learn of such action and such omission results in the
forfeiture by the party or parties from whom contribution may be sought or
material impairment of substantial rights and defenses and (y) shall not, in
any event, relieve such party or parties from any obligations other than under
this Section 8(d).
27
(e) The provisions of this Section 8 will remain in full force and
effect, regardless of any investigation made by or on behalf of any holder of
Registrable Securities, the Initial Purchaser, the Company or any of the
officers, directors or controlling persons referred to in this Section 8 and
will survive the sale (or, in the case of Resale Securities, the resale) by a
holder of Registrable Securities of such Registrable Securities.
Section 9. Underwritten Registrations (If Any). No holder may
participate in any Underwritten Registration, which Underwritten Registration
shall only be undertaken at the option of the Compa ny, unless such holder (a)
agrees to sell such holder's Securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to
approve such ar rangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
Section 10. Termination. In the event that no Securities are sold to
the Initial Purchaser pursuant to the Purchase Agreement, this Agreement shall
automatically terminate, without liability on the part of any party. Upon the
fulfillment of all obligations on the part of the Company to register the
Securities as set forth herein (including maintaining the effectiveness of any
applicable Registration Statements), this Agreement shall terminate; provided,
that the provisions of Sections 7 and 8 hereof shall survive any termination
and remain in full force and effect.
Section 11. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, and shall not, on or after the date hereof, enter into,
any agreement with respect to its securities that is inconsistent with the
rights granted to the holders of Registrable Securities herein or otherwise
conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and
28
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of holders of at least a
majority of the then outstanding aggregate principal amount of the Registrable
Securities (or, after the consummation of any Exchange Offer in accordance
with Section 2, of Exchange Securities); provided that, with respect to any
matter that directly or indirectly affects the rights of any Restricted Person
hereunder occurring within the period in which the Initial Registration
Statement is open for the Restricted Persons, the Company shall obtain the
written consent of each such Restricted Person against which such amendment,
modification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except for the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of holders of Registrable Securities whose
securities are being sold or exchanged pursuant to a Registration Statement
and that does not directly or indirectly affect the rights of other holders of
Registrable Securities may be given by holders of at least a majority in
aggregate principal amount of the Registrable Securities being sold or
exchanged by such holders pursuant to such Registration Statement; provided,
however, that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provision of the immediately
preceding sentence. Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof with respect to a matter that relates
exclusively to the rights of Resale Initial Purchasers and that does not
directly or indirectly affect the rights of holders of Registrable Securities
or Exchange Securities may be given by each of the Resale Initial Purchasers
affected thereby.
(c) Notices. All notices and other communications (including, without
limitation, any notices or other communications to the Trustee) provided for
or permitted hereunder shall be made in writing and delivered by hand
delivery, registered first-class mail, next-day air courier or telecopier:
(i) if to a holder of Registrable Securities, at the most current
address given by such holder to the Company in accordance with the
provisions of this Section 11(c), which address initially is, with
29
respect to the Initial Purchaser, at the address set forth in the Purchase
Agreement and thereafter at the address for such holders of Registrable
Securities set forth in the Security Register applicable to such
Registrable Securities; and
(ii) if to the Company, initially at the address set forth in the
Purchase Agreement and thereafter at such other address, notice of which
is given in accordance with the provisions of this Section 11(c).
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; one business
day after being timely delivered to a next-day air courier; and when received,
if telecopied.
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.
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment or
any consent by the Company thereto, subsequent holders of Registrable
Securities.
(e) 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.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS. Each of the parties hereto hereby submits to
the non-exclusive jurisdiction of the Federal
30
and State Courts of the Borough of Manhattan in the City of New York in any
suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and
of the remaining provisions hereof shall not be in any way impaired or
affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Entire Agreement. This Agreement, together with the Purchase
Agreement, is intended by the parties as a final expression of their
agreement, and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
and therein. This Agreement, together with the Purchase Agreement, supersedes
all prior agreements and understandings between the parties with respect to
such subject matter.
(j) Securities Held by the Company, etc. Whenever the consent or
approval of holders of a specified percentage of principal amount of
Registrable Securities is required hereunder, Registrable Securities held by
the Company or any of its Affiliates (other than subsequent holders of
Registrable Securities if such subsequent holders are deemed to be Affiliates
solely by reason of their holdings of such Registrable Securities) shall not
be counted in determining whether such consent or approval was given by the
holders of such required percentage.
31
Please confirm that the foregoing correctly sets forth this agreement
between the Company and you.
Very truly yours,
CALENERGY COMPANY, INC.
By: /s/ Xxxxxx X. XxXxxxxx
------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Senior Vice President
Accepted in New York, New York
September 20, 1996
CS FIRST BOSTON CORPORATION
By: /s/ X.X. Xxxxxxxxx, Xx.
-------------------------------
Name: X.X. Xxxxxxxxx, Xx.
Title: Director
32
