Registration Rights Agreement Dated as of April 4, 2008 among Norfolk Southern Corporation and Barclays Capital Inc., Deutsche Bank Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated
Exhibit 4.2
Dated
as of April 4, 2008
among
Norfolk
Southern Corporation
and
Barclays
Capital Inc.,
Deutsche
Bank Securities Inc.
and
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
This Registration Rights Agreement
(the “Agreement”) is made
and entered into this 4th day of April, 2008, among Norfolk Southern
Corporation, a Virginia corporation (the “Company”), and
Barclays Capital Inc., Deutsche Bank Securities Inc. and ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, (collectively, the “Representatives”) as
representatives of the several Purchasers named in Schedule A to the Purchase
Agreement (the “Purchasers”).
This Agreement is made pursuant to
the Purchase Agreement, dated April 1, 2008, among the Company and the
Representatives (the “Purchase Agreement”),
which provides for the sale by the Company to the Purchasers of $600 million in
aggregate principal amount of the Company’s 5.750% Senior Notes due 2018 (the
“Securities”). In
order to induce the Representatives to enter into the Purchase Agreement, the
Company has agreed to provide to the Purchasers and their direct and indirect
transferees the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing,
the parties hereto agree as follows:
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1.
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Definitions.
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As used in this Agreement, the
following capitalized defined terms shall have the following
meanings:
“1933 Act” shall
mean the Securities Act of 1933, as amended from time to time.
“1934 Act” shall
mean the Securities Exchange Act of l934, as amended from time to
time.
“Closing Date”
shall mean the Closing Time as defined in the Purchase Agreement.
“Company” shall have
the meaning set forth in the preamble and shall also include the Company's
successors.
“Depositary” shall
mean The Depository Trust Company, or any other depositary appointed by the
Company, provided, however, that such
depositary must have an address in the Borough of Manhattan, in the City of New
York.
“Exchange Offer”
shall mean the exchange offer by the Company of Exchange Notes for Transfer
Restricted Securities pursuant to Section 2.1 hereof.
“Exchange Offer Registration”
shall mean a registration under the 1933 Act effected pursuant to Section 2.1
hereof.
“Exchange Offer Registration Statement”
shall mean an exchange offer registration statement on Form S-4 (or, if
applicable, on another appropriate form), and all amendments and supplements to
such registration statement, including the Prospectus contained therein, all
exhibits thereto and all documents incorporated by reference
therein.
“Exchange Period”
shall have the meaning set forth in Section 2.1 hereof.
“Exchange Notes”
shall mean the 5.750% Senior Notes due 2018 issued by the Company under the
Indenture containing terms identical to the Securities in all material respects
(except for references to certain interest rate provisions, restrictions on
transfers and restrictive legends), to be offered to Holders of Securities in
exchange for Transfer Restricted Securities pursuant to the Exchange
Offer.
“Holder” shall mean a
Purchaser, for so long as it owns any Transfer Restricted Securities, and each
of its successors, assigns and direct and indirect transferees who become
registered owners of Transfer Restricted Securities under the Indenture and each
Participating Broker-Dealer that holds Exchange Notes for so long as such
Participating Broker-Dealer is required to deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such Exchange
Notes.
“Indenture” shall mean
the Indenture relating to the Securities, dated as of the date hereof between
the Company and U.S. Bank Trust National Association, as trustee, as the same
may be amended, supplemented, waived or otherwise modified from time to time in
accordance with the terms thereof.
“Majority Holders”
shall mean the Holders of a majority of the aggregate principal amount of
Outstanding (as defined in the Indenture) Transfer Restricted Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Transfer Restricted Securities is required hereunder, Transfer Restricted
Securities held by the Company or any Affiliate (as defined in the Indenture) of
the Company shall be disregarded in determining whether such consent or approval
was given by the Holders of such required percentage amount.
“Participating Broker-Dealer”
shall mean any of Barclays Capital Inc., Deutsche Bank Securities Inc., ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Mitsubishi
UFJ Securities International plc, PNC Capital Markets LLC, SunTrust ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Inc. and any other broker-dealer which makes a market in the
Securities and exchanges Transfer Restricted Securities in the Exchange Offer
for Exchange Notes.
“Person” shall mean an
individual, partnership (general or limited), corporation, limited liability
company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
“Private Exchange”
shall have the meaning set forth in Section 2.1 hereof.
“Private Exchange
Securities” shall have the meaning set forth in Section 2.1
hereof.
“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 any such prospectus supplement with respect
to the terms of the offering of any portion of the Transfer Restricted
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.
“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 Financial
Industry Regulatory Authority (“FINRA”) registration
and filing fees, including, if applicable, the fees and expenses of any
“qualified independent underwriter” (and the reasonable fees and disbursements
of its counsel) that is required to be retained by any holder of Transfer
Restricted Securities in accordance with the rules and regulations of FINRA,
(ii) all fees and expenses incurred in connection with compliance with
state securities or blue sky laws and compliance with the rules of FINRA
(including reasonable fees and disbursements of counsel for any underwriters or
Holders in connection with blue sky qualification of any of the Exchange Notes
or Transfer Restricted Securities and any filings with FINRA), (iii) all
expenses of any Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and compliance
with this Agreement, (iv) all fees and expenses incurred in connection with the
listing, if any, of any of the Transfer Restricted Securities on any securities
exchange or exchanges, (v) all rating agency fees, (vi) the fees and
disbursements of counsel for the Company and of the independent registered
public accounting firm of the Company, including the expenses of any special
audits or “comfort” letters required by or incident to such performance and
compliance, (vii) the fees and expenses of the Trustee, and any escrow
agent or custodian, (viii) the reasonable fees and expenses of the
Purchasers in connection with the Exchange Offer, including the reasonable fees
and expenses of counsel to the Purchasers in connection therewith, (ix) the
reasonable fees and disbursements of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, special counsel representing the Holders of Transfer Restricted Securities
(the “Special
Counsel”) and (x) any fees and disbursements of the underwriters
customarily required to be paid by issuers or sellers of securities and the fees
and expenses of any special experts retained by the Company in connection with
any Registration Statement, but excluding underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of Transfer
Restricted Securities by a Holder.
“Registration Statement”
shall mean any registration statement of the Company which covers any of the
Exchange Notes or Transfer Restricted 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
United States Securities and Exchange Commission or any successor agency or
government body performing the functions currently performed by the United
States Securities and Exchange Commission.
“Shelf Registration”
shall mean a registration effected pursuant to Section 2.2
hereof.
“Shelf Registration Statement”
shall mean a “shelf” registration statement of the Company pursuant to the
provisions of Section 2.2 of this Agreement which covers all of the Transfer
Restricted Securities or all of the Private Exchange Securities on an
appropriate form under Rule 415 under the 1933 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.
“Transfer Restricted
Securities” shall mean the Securities and, if issued, the Private
Exchange Securities; provided, however, that
Securities and, if issued, the Private Exchange Securities, shall cease to be
Transfer Restricted Securities on the earliest to occur of (i) the date on which
such Securities have been exchanged by a Person other than a broker-dealer for
an Exchange Note in the Exchange Offer, (ii) following the exchange by a
broker-dealer in the Exchange Offer of a Security for an Exchange Note, the date
on which such Exchange Note is sold to a purchaser who receives from such
broker-dealer on or prior to the date of such sale a copy of the prospectus
contained in the Exchange Offer Registration Statement, (iii) the date on which
such Securities have been effectively registered under the 1933 Act and disposed
of in accordance with the Shelf Registration Statement or (iv) the date on which
such Securities are distributed to the public pursuant to Rule 144 under the
1933 Act.
“Trustee” shall mean
the trustee with respect to the Securities under the Indenture.
2. Registration Under the ▇▇▇▇ ▇▇▇.
2.1 Exchange Offer. The
Company shall, for the benefit of the Holders, at the Company’s cost,
(A) prepare and file with the SEC an Exchange Offer Registration Statement,
within 180 days of the Closing Date, on an appropriate form under the 1933 Act
with respect to a proposed Exchange Offer and the issuance and delivery to the
Holders, in exchange for the Transfer Restricted Securities (other than Private
Exchange Securities), of a like principal amount of Exchange Notes, (B) use
all commercially reasonable efforts to cause the Exchange Offer Registration
Statement to be declared effective under the 1933 Act on within 270 days of
the Closing Date, (C) use all commercially reasonable efforts to keep the
Exchange Offer Registration Statement effective until the closing of the
Exchange Offer and (D) use all commercially reasonable efforts to issue on
or prior to 30 days, or longer, if required by United States federal securities
laws, after the date on which the Exchange Offer Registration Statement was
declared effective by the SEC, Exchange Notes in exchange for all Transfer
Restricted Securities tendered prior thereto in the Exchange Offer.
The Exchange Notes 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 eligible and
electing to exchange Transfer Restricted Securities for Exchange Notes (assuming
that such Holder (a) is not an affiliate of the Company within the meaning
of Rule 405 under the 1933 Act, (b) is not a broker-dealer tendering
Transfer Restricted Securities acquired directly from the Company for its own
account, (c) acquired the Exchange Notes in the ordinary course of such
Holder’s business and (d) has no arrangements or understandings with any
Person to participate in the Exchange Offer for the purpose of distributing the
Exchange Notes) to transfer such Exchange Notes from and after their receipt
without any limitations or restrictions under the 1933 Act and under state
securities or blue sky laws.
In connection with the Exchange
Offer, the Company shall:
(a) make
available as promptly as practicable 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 acceptance for a period of not less than
30 calendar days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law) (such period referred to herein as the
“Exchange
Period”);
(c) utilize
the services of the Depositary for the Exchange Offer;
(d) permit
Holders to withdraw tendered Transfer Restricted Securities at any time prior to
5:00 p.m. (Eastern Time), on the last business day of the Exchange Period, by
sending to the institution specified in the notice, a facsimile transmission or
letter setting forth the name of such Holder, the principal amount of Transfer
Restricted Securities delivered for exchange, and a statement that such Holder
is withdrawing such Holder’s election to have such Securities
exchanged;
(e) notify
each Holder that any Transfer Restricted Security not tendered will remain
outstanding and continue to accrue interest, but will not retain any rights
under this Agreement (except in the case of the Purchasers and Participating
Broker-Dealers as provided herein); and
(f) otherwise
comply in all respects with all applicable laws relating to the Exchange
Offer.
If, prior to consummation of the
Exchange Offer, the Purchasers hold any Securities acquired by them and having
the status of an unsold allotment in the initial distribution, the Company upon
the request of any Purchaser shall, simultaneously with the delivery of the
Exchange Notes in the Exchange Offer, issue and deliver to such Purchaser in
exchange (the “Private
Exchange”) for the Securities held by such Purchaser, a like principal
amount of debt securities of the Company on a senior unsecured basis, that are
identical (except that such securities shall bear appropriate transfer
restrictions) to the Exchange Notes (the “Private Exchange
Securities”).
The Exchange Notes and the Private
Exchange Securities shall be issued under (i) the Indenture or (ii) an
indenture identical in all material respects to the Indenture and which, in
either case, has been qualified under the Trust Indenture Act of 1939, as
amended (the “Trust
Indenture Act”), or is exempt from such qualification and shall provide
that the Exchange Notes shall not be subject to the transfer restrictions set
forth in the Indenture but that the Private Exchange Securities shall be subject
to such transfer restrictions. The Indenture or such indenture shall
provide that the Exchange Notes, the Private Exchange Securities and the
Securities shall vote and consent together on all matters as one class and that
none of the Exchange Notes, the Private Exchange Securities or the Securities
will have the right to vote or consent as a separate class on any
matter. The Company shall use all commercially reasonable efforts to
have the Private Exchange Securities bear the same CUSIP number as the Exchange
Notes. The Company shall not have any liability under this Agreement
solely as a result of such Private Exchange Securities not bearing the same
CUSIP number as the Exchange Notes.
As soon as practicable after the
close of the Exchange Offer and/or the Private Exchange, as the case may be, the
Company shall:
(i) accept for exchange all
Transfer Restricted 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 shall be an exhibit
thereto;
(ii) accept for exchange all
Securities properly tendered pursuant to the Private Exchange;
(iii) deliver to the Trustee
for cancellation all Transfer Restricted Securities so accepted for exchange;
and
(iv) cause the Trustee
promptly to authenticate and deliver Exchange Notes or Private Exchange
Securities, as the case may be, to each Holder of Transfer Restricted Securities
so accepted for exchange in a principal amount equal to the principal amount of
the Transfer Restricted Securities of such Holder so accepted for
exchange.
Interest on each Exchange Note and
Private Exchange Security will accrue from the last date on which interest was
paid on the Transfer Restricted Securities surrendered in exchange therefor or,
if no interest has been paid on such Transfer Restricted Securities, from the
date of original issuance. The Exchange Offer and the Private
Exchange shall not be subject to any conditions, other than (i) that the
Exchange Offer or the Private Exchange, 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) the due tendering of Transfer Restricted Securities in
accordance with the Exchange Offer and the Private Exchange, (iii) that
each Holder of Transfer Restricted Securities exchanged in the Exchange Offer
shall have represented that all Exchange Notes to be received by it shall be
acquired in the ordinary course of its business and that at the time of the
consummation of the Exchange Offer it shall have no arrangement or understanding
with any person to participate in the distribution (within the meaning of the
▇▇▇▇ ▇▇▇) of the Exchange Notes and 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 other appropriate form under
the 1933 Act available and (iv) that no action or proceeding shall have
been instituted or threatened in any court or by or before any governmental
agency with respect to the Exchange Offer or the Private Exchange which, in the
Company’s judgment, would reasonably be expected to impair the ability of the
Company to proceed with the Exchange Offer or the Private
Exchange. Upon request, the Company shall inform the Representatives
of the names and addresses of the Holders to whom the Exchange Offer is made,
and the Representatives shall have the right to contact such Holders and
otherwise facilitate the tender of Transfer Restricted Securities in the
Exchange Offer.
2.2 Shelf Registration. If
(i) the Company is not (A) required to file the Exchange Offer Registration
Statement or (B) permitted to consummate the Exchange Offer contemplated by
Section 2.1 hereof because the Exchange Offer is not permitted by applicable law
or SEC policy, or (ii) any Holder of Transfer Restricted Securities notifies the
Company prior to the 20th business day following consummation of the Exchange
Offer that (A) it is prohibited by law or SEC policy from participating in the
Exchange Offer, (B) it may not resell the Exchange Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales or (C) it is a broker-dealer and owns Transfer
Restricted Securities acquired directly from the Company or an Affiliate of the
Company’s, the Company will:
(a) As
promptly as practicable, but no later than 45 days after such filing obligation
arises, file with the SEC a Shelf Registration Statement to cover resales of
Transfer Restricted Securities by the Holders of such Transfer Restricted
Securities from time to time who satisfy the conditions set forth in Section
3(v) hereof relating to the provision of information in connection with the
Shelf Registration Statement.
(b) use
all commercially reasonable efforts to cause the Shelf Registration to be
declared effective by the SEC no later than 90 days after such obligation
arises.
(c) use
all commercially reasonable efforts to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming part thereof to
be usable by Holders for a period of two years from the date the Shelf
Registration Statement is declared effective by the SEC, or for such shorter
period that will terminate when all Transfer Restricted Securities covered by
the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be outstanding or otherwise to be Transfer
Restricted Securities (the “Effectiveness
Period”); provided, however, that the
Effectiveness Period in respect of the Shelf Registration Statement shall be
extended to the extent required to permit dealers to comply with the applicable
prospectus delivery requirements of Rule 174 under the 1933 Act and as otherwise
provided herein.
(d) Notwithstanding
any other provisions hereof, use all commercially reasonable efforts to ensure
that (i) any Shelf Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any supplement thereto complies in all
material respects with the 1933 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.
The Company shall not permit any
securities other than Transfer Restricted Securities to be included in the Shelf
Registration Statement. The Company further agrees, if necessary, to
supplement or amend the Shelf Registration Statement, as required by Section
3(b) below, and to furnish to the Holders of Transfer Restricted Securities
copies of any such supplement or amendment promptly after its being used or
filed with the SEC.
2.3 Expenses. The
Company shall pay all Registration Expenses in connection with the registration
pursuant to Section 2.1 or 2.2. Each Holder shall pay all
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder’s Transfer Restricted Securities pursuant
to the Shelf Registration Statement.
2.4. Effectiveness. (a) The
Company will be deemed not have used all 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 period if the Company voluntarily takes any action that would, or
omits to take any action which omission would, result in any such Registration
Statement not being declared effective or in the Holders of Transfer Restricted
Securities covered thereby not being able to exchange or offer and sell such
Transfer Restricted Securities during that period as and to the extent
contemplated hereby, unless such action is required by applicable
law.
(b) An
Exchange Offer Registration Statement pursuant to Section 2.1 hereof or a Shelf
Registration Statement pursuant to Section 2.2 hereof will 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 Transfer Restricted
Securities pursuant to an Exchange Offer Registration Statement or a Shelf
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 will be deemed not to have become effective during the
period of such interference, until the offering of Transfer Restricted
Securities pursuant to such Registration Statement may legally
resume.
2.5 Additional
Interest. If (a) the Exchange Offer Registration Statement or
the Shelf Registration Statement, as applicable, has not been declared effective
by the SEC on or prior to the deadlines for effectiveness specified in Section
2.1 and Section 2.2 of this Agreement (the “Effectiveness Target
Date”), (b) the Company fails to consummate the Exchange Offer within 30
days of the Effectiveness Target Date with respect to the Exchange Offer
Registration Statement or (c) the Shelf Registration Statement or the Exchange
Offer Registration Statement, as applicable, is declared effective but
thereafter ceases to be effective or usable in connection with resales of
Transfer Restricted Securities during the periods specified in this Agreement
(each such event referred to in clauses (a) through (c) above, a “Registration
Default”), the interest rate borne by the Securities shall be increased
(“Additional
Interest”) by one-quarter of one percent per annum, which rate will
increase by one quarter of one percent each 90-day period that such Additional
Interest continues to accrue under any such circumstance, provided that the
maximum aggregate increase in the interest rate will in no event exceed one half
of one percent per annum. Following the cure of all Registration
Defaults the accrual of Additional Interest will cease and the interest rate
will revert to the original rate.
The Company shall notify the Trustee
within three business days after each and every date on which an event occurs in
respect of which Additional Interest is required to be paid (an “Event
Date”). Additional Interest shall be paid by depositing with
the Trustee, in trust, for the benefit of the Holders of Transfer Restricted
Securities, on or before the applicable semiannual interest payment date,
immediately available funds in sums sufficient to pay the Additional Interest
then due. The Additional Interest due shall be payable on each
interest payment date to the record Holder of Securities entitled to receive the
interest payment to be paid on such date as set forth in the
Indenture. Each obligation to pay Additional Interest shall be deemed
to accrue from and including the day following the applicable Event
Date.
3. Registration Procedures.
In connection with the obligations of
the Company with respect to Registration Statements pursuant to Sections 2.1 and
2.2 hereof, the Company shall:
(a) prepare
and file with the SEC a Registration Statement on the appropriate form under the
1933 Act, which form (i) shall be selected by the Company, (ii) shall, in the
case of a Shelf Registration, be available for the sale of the Transfer
Restricted Securities by the selling Holders thereof, (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 or incorporated by reference therein, and (iv) shall
comply in all material respects with the requirements of Regulation S-T under
the 1933 Act, and use all 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; and cause each
Prospectus to be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provision then in
force) under the 1933 Act and comply with the provisions of the 1933 Act, the
1934 Act and the rules and regulations thereunder applicable to them 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 (including sales by any
Participating Broker-Dealer);
(c) in
the case of a Shelf Registration, (i) notify each Holder of Transfer Restricted
Securities, at least five business days prior to filing, that a Shelf
Registration Statement with respect to the Transfer Restricted Securities is
being filed and advising such Holders that the distribution of Transfer
Restricted Securities will be made in accordance with the method selected by the
Majority Holders participating in the Shelf Registration; (ii) furnish to each
Holder of Transfer Restricted Securities and to each underwriter of an
underwritten offering of Transfer Restricted 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 may reasonably request, including financial statements and schedules
and, if the Holder so requests, all exhibits in order to facilitate the public
sale or other disposition of the Transfer Restricted Securities; and (iii)
hereby consent to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Transfer Restricted Securities in
connection with the offering and sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto;
(d) use
all commercially reasonable efforts to register or qualify the Transfer
Restricted Securities under all applicable state securities or "blue sky" laws
of such jurisdictions as any Holder of Transfer Restricted Securities covered by
a Registration Statement and each underwriter of an underwritten offering of
Transfer Restricted Securities shall reasonably request by the time the
applicable Registration Statement is declared effective by the SEC, and do any
and all other acts and things which may be reasonably necessary or advisable to
enable each such Holder and underwriter to consummate the disposition in each
such jurisdiction of such Transfer Restricted 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 where it is not then so subject;
(e) notify
promptly each Holder of Transfer Restricted Securities under a Shelf
Registration or any Participating Broker-Dealer who has notified the Company
that it is utilizing the Exchange Offer Registration Statement as provided in
paragraph (f) below and, if requested by such Holder or Participating
Broker-Dealer, 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) in the case of a Shelf Registration, if, between the effective date of a
Registration Statement and the closing of any sale of Transfer Restricted
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 the offering cease to be true and correct
in all material respects, (v) of the happening of any event or the discovery of
any facts during the period a Shelf Registration Statement is effective which
makes any statement made in such Registration Statement untrue in any material
respect or which requires the making of any changes in such Registration
Statement in order to make the statements therein not misleading, (vi) of the
happening of any event or the discovery of any facts during the period a Shelf
Registration Statement is effective which makes any statement in the related
Prospectus untrue in any material respect or which requires the making of any
changes in such Prospectus in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, (vii) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Transfer Restricted Securities or the Exchange Notes, as
the case may be, for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose and (viii) of any determination by the
Company that a post-effective amendment to such Registration Statement would be
appropriate;
(f) (A) in
the case of the Exchange Offer Registration Statement (i) include in the
Exchange Offer Registration Statement a section entitled “Plan of Distribution”
which section shall be reasonably acceptable to ▇▇▇▇▇▇▇ ▇▇▇▇▇ on behalf of the
Participating Broker-Dealers, and which shall contain a summary statement of the
positions taken or policies made by the staff of the SEC with respect to the
potential “underwriter” status of any broker-dealer that holds Transfer
Restricted Securities acquired for its own account as a result of market-making
activities or other trading activities and that will be the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Notes to be received
by such broker-dealer in the Exchange Offer, whether such positions or policies
have been publicly disseminated by the staff of the SEC or such positions or
policies, in the reasonable judgment of the Representatives on behalf of the
Participating Broker-Dealers and its counsel, represent the prevailing views of
the staff of the SEC, including a statement that any such broker-dealer who
receives Exchange Notes for Transfer Restricted Securities pursuant to the
Exchange Offer may be deemed a statutory underwriter and must deliver a
prospectus meeting the requirements of the 1933 Act in connection with any
resale of such Exchange Notes, (ii) furnish to each Participating
Broker-Dealer who has delivered to the Company the notice referred to in Section
3(e), 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 Participating Broker-Dealer may
reasonably request, (iii) hereby consent to the use of the Prospectus
forming part of the Exchange Offer Registration Statement or any amendment or
supplement thereto, by any Person subject to the prospectus delivery
requirements of the SEC, including all Participating Broker-Dealers, in
connection with the sale or transfer of the Exchange Notes covered by the
Prospectus or any amendment or supplement thereto, and (iv) include in the
transmittal letter or similar documentation to be executed by an exchange
offeree in order to participate in the Exchange Offer (x) the following
provision:
“If
the exchange offeree is a broker-dealer holding Transfer Restricted Securities
acquired for its own account as a result of market-making activities or other
trading activities, it will deliver a prospectus meeting the requirements of the
1933 Act in connection with any resale of Exchange Notes received in respect of
such Transfer Restricted Securities pursuant to the Exchange Offer;”
and
(y)
a statement to the effect that by a broker-dealer making the acknowledgment
described in clause (x) and by delivering a Prospectus in connection with the
exchange of Transfer Restricted Securities, the broker-dealer will not be deemed
to admit that it is an underwriter within the meaning of the 1933
Act;
(g) (i) in
the case of an Exchange Offer, furnish counsel for the Purchasers and (ii) in
the case of a Shelf Registration, furnish counsel for the Holders of Transfer
Restricted Securities copies of any comment letters received from the SEC or any
other request by the SEC or any state securities authority for amendments or
supplements to a Registration Statement and Prospectus or for additional
information;
(h) use
all commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment;
(i) in
the case of a Shelf Registration, furnish to each Holder of Transfer Restricted
Securities, and each underwriter, if any, without charge, at least one conformed
copy of each Registration Statement and any post-effective amendment thereto,
including financial statements and schedules (without documents incorporated
therein by reference and all exhibits thereto, unless requested);
(j) in
the case of a Shelf Registration, cooperate with the selling Holders of Transfer
Restricted Securities to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold and not
bearing any restrictive legends; and enable such Transfer Restricted Securities
to be in such denominations (consistent with the provisions of the Indenture)
and registered in such names as the selling Holders or the underwriters, if any,
may reasonably request at least three business days prior to the closing of any
sale of Transfer Restricted 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 Sections 3(e)(v), 3(e)(vi) and
3(e)(vii) hereof, as promptly as practicable after the occurrence of such an
event, use all commercially reasonable efforts to prepare a supplement or
post-effective amendment to the 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 Transfer
Restricted Securities or Participating Broker-Dealers, 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 or will remain
so qualified. 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 any omitted
material fact, the Company agrees promptly to notify each Holder of such
determination and to furnish each Holder such number of copies of the Prospectus
as amended or supplemented, as such Holder may reasonably request;
(l) in
the case of a Shelf Registration, a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus or any document which is to
be incorporated by reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement, provide copies of such document to
the Purchasers on behalf of such Holders; and make representatives of the
Company as shall be reasonably requested by the Holders of Transfer Restricted
Securities, or the Purchasers on behalf of such Holders, available for
discussion of such document;
(m) obtain
a CUSIP number for all Exchange Notes, Private Exchange Securities or Transfer
Restricted 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 Notes, Private Exchange Securities or the Transfer Restricted
Securities, as the case may be, in a form eligible for deposit with the
Depositary;
(n) (i) cause
the Indenture to be qualified under the Trust Indenture Act in connection with
the registration of the Exchange Notes or Transfer Restricted Securities, as the
case may be, (ii) cooperate with the Trustee and the Holders 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 Trust Indenture Act and (iii) execute, and
use all commercially reasonable efforts to cause the Trustee to execute, all
documents as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(o) in
the case of a Shelf Registration, enter into agreements (including underwriting
agreements) and take all other customary and appropriate actions in order to
expedite or facilitate the disposition of such Transfer Restricted Securities
and in such connection whether or not an underwriting agreement is entered into
and whether or not the registration is an underwritten
registration:
(i) make such
representations and warranties to the Holders of such Transfer Restricted
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 them;
(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
Transfer Restricted 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 “comfort”
letters and updates thereof from the Company’s independent registered public
accounting firm (and, if necessary, any other independent registered public
accounting firm of any subsidiary of the Company or of any business acquired by
the Company for which financial statements are, or are required to be, included
in the Registration Statement) addressed to the underwriters, if any, and use
all commercially reasonable efforts to have such letter addressed to the selling
Holders of Transfer Restricted Securities (in accordance with Statement on
Auditing Standards No. 72 of the American Institute of Certified Public
Accounts), such letters to be in customary form and covering matters of the type
customarily covered in “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 Transfer Restricted
Securities, which agreement shall be in form, substance and scope customary for
similar offerings;
(v) if an
underwriting agreement is entered into, cause the same to set forth
indemnification provisions and procedures substantially equivalent to the
indemnification provisions and procedures set forth in Section 4 hereof with
respect to the underwriters and all other parties to be indemnified pursuant to
said Section or, at the request of any underwriters, in the form customarily
provided to such underwriters in similar types of transactions; and
(vi) deliver such
documents and certificates as may be reasonably requested and as are customarily
delivered in similar offerings to the Holders of a majority in principal amount
of the Transfer Restricted Securities being sold and the managing underwriters,
if any.
The
above shall be done at (i) the effectiveness of such Registration Statement (and
each post-effective amendment thereto) and (ii) each closing under any
underwriting or similar agreement as and to the extent required
thereunder;
(p) in
the case of a Shelf Registration or if a Prospectus is required to be delivered
by any Participating Broker-Dealer in the case of an Exchange Offer, make
available for inspection by representatives of the Holders of the Transfer
Restricted Securities, any underwriters participating in any disposition
pursuant to a Shelf Registration Statement, any Participating Broker-Dealer and
any counsel or accountant retained by any of the foregoing, 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, and
make such representatives of the Company available for discussion of such
documents as shall be reasonably requested by the Representatives on behalf of
such parties; provided that
information which the Company determines in good faith, to be confidential and
which it notifies such parties is confidential shall not be disclosed by such
parties unless (i) such parties reasonably determine that the disclosure of such
information is necessary to avoid or correct a material misstatement or omission
in the Shelf Registration Statement or the related Prospectus, (ii) such party
reasonably determines, based on the advice of counsel, that disclosure of such
information is required pursuant to a subpoena or other order for a court of
competent jurisdiction or any other administrative agency or is otherwise
required by applicable law, in which case each such party shall promptly notify,
if permitted by applicable law, the Company or (iii) such information has been
made generally available to the public;
(q) (i) in
the case of an Exchange Offer Registration Statement, 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 such Prospectus, provide copies of such document to
the Purchasers and to Special Counsel and make such changes in any such document
prior to the filing thereof as the Purchasers or Special Counsel may reasonably
request and, except as otherwise required by applicable law, not file any such
document in a form to which the Purchasers on behalf of the Holders of Transfer
Restricted Securities and counsel to the Holders of Transfer Restricted
Securities shall not have previously been advised and furnished a copy of or to
which the Purchasers on behalf of the Holders of Transfer Restricted Securities
or counsel to the Holders of Transfer Restricted Securities shall reasonably
object, and make the representatives of the Company available for discussion of
such documents as shall be reasonably requested by the Purchasers;
and
(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 Transfer Restricted Securities, to the
Purchasers, to counsel for the Holders and to the underwriter or underwriters of
an underwritten offering of Transfer Restricted Securities, if any, make such
changes in any such document prior to the filing thereof as the Purchasers, the
counsel to the Holders or the underwriter or underwriters reasonably request and
not file any such document in a form to which the Majority Holders, the
Purchasers on behalf of the Holders of Transfer Restricted Securities, counsel
for the Holders of Transfer Restricted Securities or any underwriter shall not
have previously been advised and furnished a copy of or to which the Majority
Holders, the Purchasers of behalf of the Holders of Transfer Restricted
Securities, counsel to the Holders of Transfer Restricted Securities or any
underwriter shall reasonably object, and make the representatives of the Company
available for discussion of such document as shall be reasonably requested by
the Holders of Transfer Restricted Securities, the Purchasers on behalf of such
Holders, counsel for the Holders of Transfer Restricted Securities or any
underwriter;
(r) in
the case of a Shelf Registration, use all commercially reasonable efforts to
cause all Transfer Restricted Securities to be listed on any securities exchange
on which similar debt securities issued by the Company are then listed if
requested by the Majority Holders, or if requested by the underwriter or
underwriters of an underwritten offering of Transfer Restricted Securities, if
any;
(s) in
the case of a Shelf Registration, use all commercially reasonable efforts to
cause the Transfer Restricted Securities to be rated by the appropriate rating
agencies, if so requested by the Majority Holders, or if requested by the
underwriter or underwriters of an underwritten offering of Transfer Restricted
Securities, if any;
(t) otherwise
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 12 months which shall satisfy the provisions of
Section 11(a) of the 1933 Act and Rule 158 thereunder; and
(u) cooperate
and assist in any filings required to be made with FINRA and, in the case of a
Shelf Registration, in the performance of any due diligence investigation by any
underwriter and its counsel (including any "qualified independent underwriter"
that is required to be retained in accordance with the rules and regulations of
FINRA).
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 Transfer Restricted Securities to
furnish to the Company such information regarding the Holder and the proposed
distribution by such Holder of such Transfer Restricted Securities as the
Company may from time to time reasonably request in writing.
In the case of a Shelf Registration
Statement, each Holder agrees that, upon receipt of any notice from the Company
of (i) the happening of any event or the discovery of any facts, each of the
kind described in Section 3(e)(v) or 3(e)(vi) hereof, or (ii) the good faith
determination of the Board of Directors or the Chief Executive Officer and Chief
Financial Officer of the Company that the continued effectiveness of the Shelf
Registration Statement and use of the Prospectus would require disclosure of
confidential information related to a material acquisition or divestiture of
assets or a material corporate transaction, event or development, such Holder
will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to a Registration Statement until such Holder’s receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(k) hereof,
and, if so directed by the Company, such Holder will deliver to the Company (at
its expense) all copies in such Holder’s possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Transfer Restricted Securities current at the time of receipt of such notice;
provided that
the Company shall not allow the Shelf Registration Statement to fail or cease to
be effective or allow the Prospectus to be unusable pursuant to the provisions
of this paragraph for more than 45 days during any year of effectiveness
contemplated by Section 2 hereof. It is understood and agreed that
the provisions of this paragraph shall not affect the Company’s obligations
under Section 2.5 of this Agreement.
In the event that the Company fails
to effect the Exchange Offer or file any Shelf Registration Statement and
maintain the effectiveness of any Shelf Registration Statement as provided
herein, the Company shall not file any Registration Statement with respect to
any securities (within the meaning of Section 2(1) of the ▇▇▇▇ ▇▇▇) of the
Company other than Transfer Restricted Securities.
If any of the Transfer Restricted
Securities covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the underwriter or underwriters and manager or managers
that will manage such offering will be selected by the Majority Holders of such
Transfer Restricted Securities included in such offering and shall be acceptable
to the Company. No Holder of Transfer Restricted Securities may
participate in any underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder’s Transfer Restricted 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.
4. Indemnification; Contribution.
(a)
With respect to the Securities, the Company agrees to indemnify and hold
harmless the Purchasers, each Holder, each Participating Broker-Dealer, each
Person who participates as an underwriter (any such Person being an “Underwriter”) and
each Person, if any, who controls any Holder or Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act with respect to the
Securities as follows:
(i) against any and all
loss, liability, claim, damage and expense whatsoever, as incurred, arising out
of any untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement (or any amendment or supplement thereto) pursuant
to which Exchange Notes or Transfer Restricted Securities were registered under
the 1933 Act, including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or arising
out of any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all
loss, liability, claim, damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 4(d) below) any such settlement is effected with the
written consent of the Company; and
(iii) against any and all
expense whatsoever, as incurred (including the reasonable fees and disbursements
of counsel chosen by any indemnified party), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under subparagraph (i) or (ii) above;
provided, however, that this
indemnity agreement shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by the Holder or Underwriter
expressly for use in a Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto).
(b) Each
Holder severally, but not jointly, agrees to indemnify and hold harmless the
Company, the Purchasers, each Underwriter and the other selling Holders, and
each of their respective directors and officers, and each Person, if any, who
controls the Company, the Purchasers, any Underwriter or any other selling
Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 4(a) hereof, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Shelf Registration Statement (or any
amendment thereto) or any Prospectus included therein (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
with respect to such Holder furnished to the Company by such Holder expressly
for use in the Shelf Registration Statement (or any amendment thereto) or such
Prospectus (or any amendment or supplement thereto); provided, however, that no such
Holder shall be liable for any claims hereunder in excess of the amount of net
proceeds received by such Holder from the sale of Transfer Restricted Securities
pursuant to such Shelf Registration Statement.
(c) Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action or proceeding commenced against it in
respect of which indemnity may be sought hereunder, but failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. An indemnifying party
may participate at its own expense in the defense of such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 4 (whether or
not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If
at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 4(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
(e) If
the indemnification provided for in this Section 4 is for any reason unavailable
to or insufficient to hold harmless an indemnified party in respect of any
losses, liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and the Holders and the Purchasers of the Securities
on the other hand in connection with the statements or omissions which resulted
in such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The
relative fault of the Company on the one hand and the Holders and the Purchasers
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Holders or the Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The
Company, the Holders and the Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 4 were determined by pro rata
allocation (even if the Purchasers were treated as one entity for such purpose)
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 4. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 4 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding
the provisions of this Section 4, no Purchaser or Holder shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities sold by it were offered exceeds the amount of any damages which
such Purchaser or Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission with respect
to the Securities.
No
Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each
Person, if any, who controls a Purchaser or Holder within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Purchaser or Holder, and each director of the Company, and
each Person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Purchasers’ respective obligations
to contribute pursuant to this Section 7 are several in proportion to the
principal amount of Securities set forth opposite their respective names in
Schedule A to the Purchase Agreement and not joint.
5. Miscellaneous.
5.1 Rule 144 and Rule 144A. For
so long as the Company is subject to the reporting requirements of Section 13 or
15 of the 1934 Act, the Company covenants that it will file the reports required
to be filed by it under the 1933 Act and Section 13(a) or 15(d) of the 1934 Act
and the rules and regulations adopted by the SEC thereunder. If the
Company ceases to be so required to file such reports, the Company covenants
that it will upon the request of any Holder of Transfer Restricted Securities
(a) make publicly available such information as is necessary to permit sales
pursuant to Rule 144 under the 1933 Act, (b) deliver such information to a
prospective purchaser as is necessary to permit sales pursuant to Rule 144A
under the 1933 Act and it will take such further action as any Holder of
Transfer Restricted Securities may reasonably request, and (c) 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 Transfer Restricted
Securities without registration under the 1933 Act within the limitation of the
exemptions provided by (i) Rule 144 under the 1933 Act, as such Rule may be
amended from time to time, (ii) Rule 144A under the 1933 Act, as such Rule may
be amended from time to time, or (iii) any similar rules or regulations
hereafter adopted by the SEC. Upon the request of any Holder of
Transfer Restricted Securities, the Company will deliver to such Holder a
written statement as to whether it has complied with such
requirements.
5.2 No Inconsistent Agreements. The
Company has not entered into and the Company will not after the date of this
Agreement enter into any agreement which is inconsistent with the rights granted
to the Holders of Transfer Restricted Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not and will not for the term of this Agreement in any way
conflict with the rights granted to the holders of the Company's other issued
and outstanding securities under any such agreements.
5.3 Amendments and Waivers. The
provisions of this Agreement, including the provisions of this sentence, may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of at least a majority in aggregate principal amount
of the outstanding Transfer Restricted Securities affected by such amendment,
modification, supplement, waiver or departure.
5.4 Notices. All
notices and other communications provided for or permitted hereunder shall be
made in writing by hand delivery, registered first-class mail, telex,
telecopier, or any courier guaranteeing overnight delivery (a) if to a Holder,
at the most current address given by such Holder to the Company by means of a
notice given in accordance with the provisions of this Section 5.4, which
address initially is the address set forth in the Purchase Agreement with
respect to the Purchasers; and (b) if to the Company, initially at the
Company’s address set forth in the Purchase Agreement, and thereafter at such
other address of which notice is given in accordance with the provisions of this
Section 5.4.
All such notices and communications
shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; two 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 under the Indenture, at the address specified in such
Indenture.
5.5 Successor 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 Transfer Restricted Securities in violation of the terms of the Purchase
Agreement or the Indenture. If any transferee of any Holder shall
acquire Transfer Restricted Securities, in any manner, whether by operation of
law or otherwise, such Transfer Restricted Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such Transfer
Restricted 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.
5.6 Third Party Beneficiaries. The
Purchasers (even if the Purchasers are not Holders of Transfer Restricted
Securities) shall be third party beneficiaries to the agreements made hereunder
between the Company, on the one hand, and the Holders, on the other hand, and
shall have the right to enforce such agreements directly to the extent they deem
such enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder. Each Holder of Transfer Restricted Securities
shall be a third party beneficiary to the agreements made hereunder between the
Company, on the one hand, and the 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 hereunder.
5.7. Specific
Enforcement. Without limiting the remedies available to the
Purchasers and the Holders, the Company acknowledges that any failure by the
Company to comply with its obligations under Sections 2.1 through 2.4 hereof may
result in material irreparable injury to the Purchasers or the Holders for which
there is no adequate remedy at law, that it would not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company’s obligations under Sections 2.1 through 2.4
hereof.
5.8. Restriction on
Resales. The Company will not, and will cause their
“affiliates"” (as such term is defined in Rule 144(a)(1) under the ▇▇▇▇ ▇▇▇) not
to, resell any Securities which are “restricted securities” (as such term is
defined under Rule 144(a)(3) under the ▇▇▇▇ ▇▇▇) that have been reacquired by
any of them and shall immediately upon any purchase of any such Securities
submit such Securities to the Trustee for cancellation.
5.9 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.
5.10 Headings. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS
THEREOF.
5.12 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.
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the date first written above.
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NORFOLK
SOUTHERN CORPORATION
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|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
Vice President and Treasurer
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Confirmed
and accepted as
of
the date first above written:
▇▇▇▇▇▇▇
LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
/s/ ▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Managing Director
BARCLAYS
CAPITAL INC.
By:
/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Director
DEUTSCHE
BANK SECURITIES INC.
By:
/s/ ▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Managing Director
By:
/s/ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title:
Managing Director