EXHIBIT 4.11
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of August 11, 1998 between IMC GLOBAL INC., a Delaware
corporation (the "Company"), and the Initial Purchasers (as hereinafter
defined).
This Agreement is made pursuant to the Purchase Agreement dated August
6, 1998 (the "Purchase Agreement"), between the Company, as issuer of the 6-1/2%
Notes due 2003 (the "Notes") and 7-3/8% Debentures due 2018 (the "Debentures"),
and the Initial Purchasers, which provides for, among other things, the sale by
the Company to the Initial Purchasers of the aggregate principal amounts of
Notes and Debentures specified therein. In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide to the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of Section
3 hereof.
"Affiliate" has the same meaning as given to that term in Rule 405 under
the Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section 3(t)
hereof.
"Business Day" means any day other than a Saturday, a Sunday, or a day on
which banking institutions in New York, New York are authorized or required by
law or executive order to remain closed.
"Closing Time" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"Debentures" shall have the meaning set forth in the preamble to this
Agreement.
"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, The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Exchange Debentures" shall mean the 7-3/8% Debentures due 2018 issued by
the Company under the Indenture containing terms identical in all material
respects to the Debentures (except that (i) interest thereon shall accrue from
the last date on which interest was paid or duly provided for on the Debentures
or, if no such interest has been paid, from the date of their original issue,
(ii) they will not contain terms with respect to transfer restrictions under the
Securities Act and (iii) they will not provide for any Special Interest Premium
thereon) to be offered to Holders of Debentures in exchange for Debentures
pursuant to the Exchange Offer.
"Exchange Notes" shall mean the 6-1/2% Notes due 2003 issued by the Company
under the Indenture containing terms identical in all material respects to the
Notes (except that (i) interest thereon shall accrue from the last date on which
interest was paid or duly provided for on the Notes or, if no such interest has
been paid, from the date of their original issue, (ii) they will not contain
terms with respect to transfer restrictions under the Securities Act and (iii)
they will not provide for any Special Interest Premium thereon) to be offered to
Holders of Notes in exchange for Notes pursuant to the Exchange Offer.
"Exchange Offer" shall mean the offer by the Company to the Holders to
exchange all of the Registrable Notes and Registrable Debentures for a like
amount of Exchange Notes and Exchange Debentures pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a) hereof.
"Holder" shall mean any Initial Purchaser, for so long as it owns any
Registrable Notes or Registrable Debentures, and each of its successors, assigns
and direct and indirect transferees who become registered owners of Registrable
Notes or Registrable Debentures, as the case may be, under the Indenture.
"Indenture" shall mean the Indenture, dated as of August 1, 1998, between
the Company, as issuer, and The Bank of New York, as trustee, as the same may be
amended or supplemented from time to time in accordance with the terms thereof.
"Initial Purchasers" shall mean Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxx Securities Inc., Chase Securities Inc.
and Salomon Brothers Inc.
"Inspectors" shall have the meaning set forth in Section 3(n) hereof.
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"Issue Date" shall mean August 4, 1998, the date of delivery of the Notes
and the Debentures from the Company to the Initial Purchasers.
"Issuer" shall mean the Company as defined in the preamble hereto.
"Majority Holders" shall mean, as the context requires, the Holders of a
majority of the aggregate principal amount of outstanding Notes and Exchange
Notes or the Holders of a majority of the aggregate principal amount of
outstanding Debentures and Exchange Debentures, as the case may be.
"Notes" shall have the meaning set forth in the preamble to this Agreement.
"Participating Broker-Dealer" shall have the meaning set forth in Section
3(t) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability corporation, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Notes or Registrable Debentures 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 documents
incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble to
this Agreement.
"Records" shall have the meaning set forth in Section 3(n) hereof.
"Registrable Debentures" shall mean the Debentures; provided, however, that
any Debentures shall cease to be Registrable Debentures when any of the
following occurs: (i) a Registration Statement with respect to such Debentures
for the exchange or resale thereof shall have been declared effective under the
Securities Act and such Debentures shall have been disposed of pursuant to such
Registration Statement, (ii) such Debentures shall have been sold to the public
pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the Securities Act or are eligible to be sold without restriction as
contemplated by Rule 144(k), (iii) such Debentures shall have ceased to be
outstanding or (iv) no Shelf Registration Event has occurred and the Exchange
Offer has concluded in accordance with the provisions hereof.
"Registrable Notes" shall mean the Notes; provided, however, that any Notes
shall cease to be Registrable Notes when any of the following occurs: (i) a
Registration Statement with respect to such Notes for the exchange or resale
thereof shall have been declared effective under the Securities Act and such
Notes shall have been disposed of pursuant to such Registration Statement, (ii)
such Notes shall have been sold to the public pursuant to Rule 144(k) (or any
similar provision then in force, but not Rule 144A) under the Securities Act or
are eligible to be
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sold without restriction as contemplated by Rule 144(k), (iii) such Notes shall
have ceased to be outstanding or (iv) no Shelf Registration Event has occurred
and the Exchange Offer has concluded in accordance with the provisions hereof.
"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 or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any Holder of Registrable Notes or
Registrable Debentures in accordance with the rules and regulations of the NASD,
(ii) all fees and expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements of one
counsel for all underwriters and Holders as a group in connection with blue sky
qualification of any of the Exchange Notes, Exchange Debentures, Registrable
Notes or Registrable Debentures) and compliance with the rules of the NASD,
(iii) all expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any Prospectus
and any amendments or supplements thereto, and in preparing or assisting in
preparing, printing and distributing any underwriting agreements, securities
sales agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, (v) the fees and
disbursements of counsel for the Company and of the independent certified public
accountants of the Company and its subsidiaries, including the expenses of any
"cold comfort" letters required by or incident to the performance of and
compliance with this Agreement, (vi) the reasonable fees and expenses of the
Trustee and its counsel and any exchange agent or custodian, and (vii) the
reasonable fees and expenses of any special experts retained by the Company in
connection with any Registration Statement.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Exchange Notes, Exchange Debentures, Registrable
Notes or Registrable Debentures 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 documents incorporated by reference
therein.
"Rule 144(k) Period" shall mean the period of two years (or such shorter
period as may hereafter be referred to in Rule 144(k) under the Securities Act
(or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Registration" shall mean a registration effected pursuant to Section
2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section 2(b)
hereof.
"Shelf Registration Event Date" shall have the meaning set forth in Section
2(b) hereof.
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"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 2(b) hereof which covers
all of the Registrable Notes and Registrable Debentures (except Registrable
Notes and Registrable Debentures which the Holders have elected not to include
in such Shelf Registration Statement or the Holders of which have not complied
with their obligations under the penultimate paragraph of Section 3 hereof or
under the penultimate sentence of Section 2(b) hereof) on an appropriate form
under Rule 415 under the Securities Act, or any similar rule that may be adopted
by the SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all documents incorporated by
reference therein.
"Special Interest Premium" shall have the meaning set forth in Section 2(e)
hereof.
"TIA" shall have the meaning set forth in Section 3(k) hereof.
"Trustee" shall mean the trustee under the Indenture.
2. Registration Under the Securities Act.
(a) Exchange Offer. Except as set forth in Section 2(b) below, the
Company shall, for the benefit of the Holders, at the Company's cost, use its
reasonable best efforts to (i) file with the SEC within 90 calendar days after
the Issue Date an Exchange Offer Registration Statement on an appropriate form
under the Securities Act relating to the Exchange Offer, (ii) cause such
Exchange Offer Registration Statement to be declared effective under the
Securities Act by the SEC not later than the date which is 150 calendar days
after the Issue Date, (iii) keep such Exchange Offer Registration Statement
effective for not less than 30 calendar days (or longer if required by
applicable law) after the date notice of the Exchange Offer is mailed to the
Holders and (iv) cause the Exchange Offer to be consummated within 180 calendar
days after the Issue Date. Promptly after the effectiveness of the Exchange
Offer Registration Statement, the Company shall commence the Exchange Offer, it
being the objective of such Exchange Offer to enable each Holder eligible and
electing to exchange Registrable Notes or Registrable Debentures for a like
principal amount of Exchange Notes or Exchange Debentures, respectively
(provided that such Holder (i) is not an Affiliate of the Company, (ii) is not a
broker-dealer tendering Registrable Notes or Registrable Debentures acquired
directly from the Company, (iii) acquires the Exchange Notes or the Exchange
Debentures, as applicable, in the ordinary course of such Holder's business and
(iv) has no arrangements or understandings with any Person to participate in the
Exchange Offer for the purpose of distributing the Exchange Notes or Exchange
Debentures) to transfer such Exchange Notes and/or such Exchange Debentures from
and after their receipt without any limitations or restrictions under the
Securities Act and under state securities or blue sky laws.
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
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(ii) keep the Exchange Offer open for acceptance for a period of not less
than 30 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");
(iii) utilize the services of the Depositary for the Exchange Offer with
respect to Notes and Debentures represented by a global certificate;
(iv) permit Holders to withdraw tendered Registrable Notes and Registrable
Debentures at any time prior to the close of business, New York City time, on
the last Business Day of the Exchange Period, by sending to the institution
specified in the notice to Holders, a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the series and principal amount of
Registrable Notes and/or Registrable Debentures delivered for exchange, and a
statement that such Holder is withdrawing his election to have such Registrable
Notes and/or Registrable Debentures exchanged;
(v) notify each Holder that any Registrable Note or Registrable Debenture
not tendered by such Holder in the Exchange Offer will remain outstanding and
continue to accrue interest but will not retain any rights under this Agreement
(except in the case of the Initial Purchasers and Participating Broker-Dealers
as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to
the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Registrable Notes and Registrable Debentures
or portions thereof duly tendered and not validly withdrawn pursuant to the
Exchange Offer in accordance with the terms of the Exchange Offer Registration
Statement and letter of transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for cancellation
all Registrable Notes and Registrable Debentures or portions thereof so accepted
for exchange by the Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly
authenticate and deliver to each Holder, Exchange Notes of the same series equal
in principal amount to the principal amount of the Registrable Notes as are
surrendered by such Holder, and Exchange Debentures of the same series equal in
principal amount to the principal amount of the Registrable Debentures as are
surrendered by such Holder.
Interest on each Exchange Note and Exchange Debenture issued pursuant
to the Exchange Offer will accrue from the last date on which interest was paid
or duly provided for on the Registrable Note or Registrable Debenture
surrendered in exchange therefor or, if no interest has been paid on such
Registrable Note or such Registrable Debenture, from the Issue Date. To the
extent not prohibited by any law or applicable interpretation of the staff of
the SEC, the Company shall use reasonable best efforts to complete the Exchange
Offer as provided above, and shall comply with the applicable requirements of
the Securities Act, the Exchange Act and other applicable laws in connection
with the Exchange Offer. The Exchange Offer shall not be subject to any
conditions other than the conditions referred to in Section 2(b)(i) and (ii)
below
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and those conditions that are customary in similar exchange offers. Each
Holder of Registrable Notes or Registrable Debentures who wishes to exchange
such Registrable Notes or Registrable Debentures for Exchange Notes or Exchange
Debentures in the Exchange Offer will be required to make certain customary
representations in connection therewith, including, in the case of any Holder,
representations that (i) it is not an Affiliate of the Company, (ii) it is not a
broker-dealer tendering Registrable Notes or Registrable Debentures acquired
directly from the Company, (iii) the Exchange Notes or Exchange Debentures to be
received by it are being acquired in the ordinary course of its business and
(iv) at the time of the Exchange Offer, it has no arrangements or understandings
with any Person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Notes or the Exchange Debentures. The Company
shall inform the Initial Purchasers, after consultation with the Trustee, of the
names and addresses of the Holders to whom the Exchange Offer is made, and the
Initial Purchasers shall have the right to contact such Holders in order to
facilitate the tender of Registrable Notes or Registrable Debentures in the
Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this
Section 2(a), the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Exchange Notes and Exchange Debentures held by
Participating Broker-Dealers, and the Company shall have no further obligation
to register the Registrable Notes or Registrable Debentures held by any Holder
pursuant to Section 2(b) of this Agreement.
(b) Shelf Registration. If (i) because of any change in law or in
currently prevailing interpretations thereof by the staff of the SEC, the
Company is not permitted to effect the Exchange Offer as contemplated by Section
2(a) hereof, (ii) the Exchange Offer is not consummated within 180 days after
the Issue Date or (iii) upon the request of any Initial Purchaser with respect
to any Registrable Notes or Registrable Debentures held by it, if such Initial
Purchaser is not permitted, in the reasonable opinion of Xxxxx & Xxxx llp,
pursuant to applicable law or applicable interpretations of the staff of the
SEC, to participate in the Exchange Offer and thereby receive securities that
are freely tradeable without restriction under the Securities Act and applicable
blue sky or state securities laws (any of the events specified in (i), (ii) or
(iii) being a "Shelf Registration Event", and the date of occurrence thereof,
the "Shelf Registration Event Date"), then in addition to or in lieu of
conducting the Exchange Offer contemplated by Section 2(a), as the case may be,
the Company shall promptly notify the Holders in writing thereof and shall, at
its cost, file as promptly as practicable after such Shelf Registration Event
Date and, in any event, within 90 days after such Shelf Registration Event Date,
a Shelf Registration Statement providing for the sale by the Holders of all of
the Registrable Notes and all of the Registrable Debentures (other than
Registrable Notes and Registrable Debentures owned by Holders who have elected
not to include such Registrable Notes or Registrable Debentures in such Shelf
Registration Statement or who have not complied with their obligations under the
penultimate paragraph of Section 3 hereof or under the penultimate sentence of
this Section 2(b), and shall use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the SEC as soon as
practicable. No Holder of Registrable Notes or Registrable Debentures shall be
entitled to include any of its Registrable Notes or Registrable Debentures in
any Shelf Registration pursuant to this Agreement unless and until such Holder
agrees in writing to be bound by all of the provisions of this Agreement
applicable to such Holder and furnishes to the Company in writing, within 15
days after receipt of a request therefor, such information as the Company may,
after conferring
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with counsel with regard to information relating to Holders that would be
required by the SEC to be included in such Shelf Registration Statement or
Prospectus included therein, reasonably request for inclusion in any Shelf
Registration Statement or Prospectus included therein. Each Holder as to which
any Shelf Registration is being effected agrees to furnish to the Company all
information with respect to such Holder necessary to make the information
previously furnished to the Company by such Holder not materially misleading.
The Company agrees to use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective and the Prospectus usable
for resales for the earlier of: (a) the Rule 144(k) Period or (b) such time as
all of the securities covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement or cease to be Registrable Notes or
Registrable Debentures (the "Effectiveness Period"). The Company shall not
permit any securities other than (i) the Company's issued and outstanding
securities currently possessing incidental registration rights (ii) Registrable
Notes and (iii) Registrable Debentures, to be included in the Shelf
Registration. The Company will, in the event a Shelf Registration Statement is
declared effective, provide to each Holder of Registrable Notes or Registrable
Debentures covered thereby a reasonable number of copies of the Prospectus which
is a part of the Shelf Registration Statement, notify each such Holder when the
Shelf Registration has become effective and take any other action required to
permit unrestricted resales of the Registrable Notes and Registrable Debentures.
The Company further agrees, if necessary, to supplement or amend the Shelf
Registration Statement, if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registrations, and the Company agrees to
furnish to the Holders of Registrable Notes or Registrable Debentures covered by
such Shelf Registration Statement copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in
connection with any Registration Statement filed pursuant to Section 2(a) and/or
2(b) hereof and will reimburse the Initial Purchasers for the reasonable fees
and disbursements of Xxxxx & Wood llp incurred in connection with the Exchange
Offer. Except as provided herein, each Holder shall pay all expenses of its
counsel, underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Notes or
Registrable Debentures pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) 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 Registrable Notes and
Registrable Debentures pursuant to such Exchange Offer Registration Statement or
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 Exchange Offer Registration Statement or Shelf Registration Statement will
be deemed not to have been effective during the period of such interference,
until the offering of Registrable Notes and Registrable Debentures pursuant to
such Registration Statement may legally resume. The Company will be deemed not
to have used its reasonable best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
to become, or to remain,
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effective during the requisite period if it voluntarily takes any action that
would result in any such Registration Statement not being declared effective or
that would result in the Holders of Registrable Notes or Registrable Debentures
covered thereby not being able to exchange or offer and sell such Registrable
Notes or such Registrable Debentures during that period, unless such action is
required by applicable law.
(e) Special Interest Premium. In the event that:
(i) the Exchange Offer Registration Statement is not filed with
the SEC on or prior to the 90th day after the Issue Date, then, commencing on
the 91st day after the Issue Date, a special interest premium (the "Special
Interest Premium") shall accrue on the principal amount of each of the Notes and
the Debentures at a rate of 0.25% per annum;
(ii) the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the 150th day after the Issue Date, then,
commencing on the 151st day after the Issue Date, a Special Interest Premium
shall accrue on the principal amount of each of the Notes and the Debentures at
a rate of 0.25% per annum;
(iii) (A) the Company has not exchanged Exchange Notes and
Exchange Debentures for all Registrable Notes and Registrable Debentures,
respectively, validly tendered in accordance with the terms of the Exchange
Offer on or prior to the 180th day after the Issue Date or (B) if the Shelf
Registration Statement is required to be filed pursuant to Section 2(b) but is
not declared effective by the SEC on or prior to the 180th day after the Issue
Date, then, commencing on the 181st day after the Issue Date, a Special Interest
Premium shall accrue on the principal amount of each of the Notes and the
Debentures at the rate of 0.25% per annum; or
(iv) the Shelf Registration Statement has been declared effective
and such Shelf Registration Statement ceases to be effective or the Prospectus
ceases to be usable for resales (A) at any time prior to the expiration of the
Effectiveness Period or (B) if related to corporate developments, public filings
or similar events or to correct a material misstatement or omission in the
Prospectus, for more than 60 days (whether or not consecutive) in any twelve-
month period, then a Special Interest Premium shall accrue on the principal
amount of each of the Notes and the Debentures at a rate of 0.25% per annum
commencing on the day (in the case of (A) above), or the 61st day after (in the
case of (B) above), such Shelf Registration Statement ceases to be effective or
the Prospectus ceases to be usable for resales;
provided, however, that the aggregate amount of the Special Interest Premium in
respect of each of the Notes and the Debentures may not exceed 0.25% per annum;
provided, further, however, that (1) upon the filing of the Exchange Offer
Registration Statement (in the case of clause (i) above), (2) upon the
effectiveness of the Exchange Offer Registration Statement (in the case of
clause (ii) above), (3) upon the exchange of Exchange Notes and Exchange
Debentures for all Registrable Notes and Registrable Debentures, respectively,
validly tendered (in the case of clause (iii)(A) above) or upon the
effectiveness of the Shelf Registration Statement (in the case of clause (iii)
(B) above) or (4) the earlier of (y) such time as the Shelf Registration
Statement which had ceased to remain effective or the Prospectus which had
ceased to be usable for resales again becomes effective and usable for resales
and (z) the expiration of the Effectiveness Period (in the case of clause (iv)
above), the Special Interest Premium on the principal amount of each
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of the Notes and the Debentures as a result of such clause (or the relevant
subclause thereof) shall cease to accrue;
provided, further, however, that if the Exchange Offer Registration Statement is
not declared effective by the SEC on or prior to the 150th day after the Issue
Date and the Company shall request Holders to provide the information required
by the SEC for inclusion in the Shelf Registration Statement, the Notes and the
Debentures owned by Holders who do not provide such information when required
pursuant to Section 2(b) will not be entitled to any Special Interest Premium
for any day after the 180th day after the Issue Date.
Any Special Interest Premium due pursuant to Section 2(e)(i), (ii), (iii)
or (iv) above will be payable in cash on the next succeeding February 1 or
August 1, as the case may be, to Holders on the relevant record dates for the
payment of interest pursuant to the Indenture.
(f) Specific Enforcement. Without limiting the remedies available to
the Holders, the Company acknowledges that any failure by the Company to comply
with its obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to 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, any Holder may obtain such
relief as may be required to specifically enforce the Company's obligations
under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of
the Company with respect to the Registration Statements pursuant to Sections
2(a) and 2(b) hereof, the Company shall use its reasonable best efforts to:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof
within the relevant time period specified in Section 2 hereof on the
appropriate form under the Securities Act, which form shall (i) be
selected by the Company, (ii) in the case of a Shelf Registration, be
available for the sale of the Registrable Notes and the Registrable
Debentures by the selling Holders thereof and, in the case of an
Exchange Offer, be available for the exchange of Registrable Notes and
Registrable Debentures, and (iii) comply as to form in all material
respects with the requirements of the applicable form and include all
financial statements required by the SEC to be filed therewith; the
Company shall use its reasonable best efforts to cause such
Registration Statement to become effective and remain effective (and,
in the case of a Shelf Registration Statement, the Prospectus to be
usable for resales) in accordance with Section 2 hereof; provided,
however, that if (1) such filing is pursuant to Section 2(b), or (2) a
Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes or Exchange Debentures, before filing any Registration
Statement or Prospectus or any amendments or supplements thereto, the
Company shall furnish to and afford the Holders of the Registrable
Notes and Registrable Debentures and each such Participating Broker-
Dealer, as the case may be, covered by such Registration Statement,
their counsel and the managing
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underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated
by reference therein and all exhibits thereto) proposed to be filed;
and the Company shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto in respect of
which the Holders must be afforded an opportunity to review prior to
the filing of such document if the Majority Holders of either or both
the Registrable Notes or Registrable Debentures, depending solely upon
which Holders must be afforded the opportunity of such review, or such
Participating Broker-Dealer, as the case may be, their counsel or the
managing underwriters, if any, shall reasonably object in a timely
manner;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep
such Registration Statement effective for the Effectiveness Period or
the Applicable Period, as the case may be, and cause each Prospectus
to be supplemented, if so determined by the Company or requested by
the SEC, 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 Securities Act, and comply with the provisions of the
Securities Act, the Exchange Act and the rules and regulations
promulgated thereunder applicable to it with respect to the
disposition of all securities covered by each Registration Statement
during the Effectiveness Period or the Applicable Period, as the case
may be, in accordance with the intended method or methods of
distribution by the selling Holders thereof described in this
Agreement (including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Notes and Registrable Debentures included in the Shelf
Registration Statement, at least three Business Days prior to filing,
that a Shelf Registration Statement with respect to the Registrable
Notes and the Registrable Debentures is being filed and advising such
Holder that the distribution of Registrable Notes and Registrable
Debentures will be made in accordance with the method selected by (1)
the Majority Holders of the Registrable Notes solely in respect to the
method of distribution for the Registrable Notes and (2) the Majority
Holders of the Registrable Debentures solely in respect to the method
of distribution for the Registrable Debentures, (ii) furnish to each
Holder of Registrable Notes and Registrable Debentures included in the
Shelf Registration Statement and to each underwriter of an
underwritten offering of Registrable Notes and Registrable Debentures,
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, in order to facilitate the public sale or other disposition
of the Registrable Notes and Registrable Debentures and (iii) consent
to the use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders of Registrable Notes and Registrable
Debentures included in the Shelf Registration Statement in connection
with the offering and sale of the Registrable Notes and Registrable
Debentures covered by the Prospectus or any amendment or supplement
thereto;
11
(d) in the case of a Shelf Registration, register or qualify the
Registrable Notes and Registrable Debentures under all applicable
state securities or "blue sky" laws of such jurisdictions by the time
the applicable Registration Statement is declared effective by the SEC
as any Holder of Registrable Notes or Registrable Debentures covered
by a Registration Statement and each underwriter of an underwritten
offering of Registrable Notes or Registrable Debentures shall
reasonably request in writing in advance of such date of
effectiveness, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder and
underwriter to consummate the disposition in each such jurisdiction of
such Registrable Notes or Registrable Debentures 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), (ii) file any general consent to service of
process in any jurisdiction where it would not otherwise be subject to
such service of process or (iii) subject itself to taxation in any
such jurisdiction if it is not then so subject;
(e) (1) in the case of a Shelf Registration or (2) if Participating
Broker-Dealers from whom the Company has received prior written notice
that they will be utilizing the Prospectus contained in the Exchange
Offer Registration Statement as provided in Section 3(t) hereof, are
seeking to sell Exchange Notes or Exchange Debentures and are required
to deliver Prospectuses, promptly notify each Holder of Registrable
Notes and Registrable Debentures, or such Participating Broker-
Dealers, as the case may be, their counsel and the managing
underwriters, if any, and promptly confirm such notice in writing (i)
when a Registration Statement has become effective and when any post-
effective amendments thereto become effective, (ii) of any request by
the SEC or any state securities authority for amendments and
supplements to a Registration Statement or 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 qualification of the Registrable Notes,
the Registrable Debentures, the Exchange Notes or the Exchange
Debentures to be offered or sold by any Participating Broker-Dealer in
any jurisdiction described in Section 3(d) hereof 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 Registrable Notes or
Registrable Debentures covered thereby, the representations and
warranties of the Company contained in any purchase agreement,
securities sales agreement or other similar agreement cease to be true
and correct in all material respects, (v) of the happening of any
event or the failure of any event to occur or the discovery of any
facts, during the Effectiveness Period, which makes any statement made
in such Registration Statement or the related Prospectus untrue in any
material respect or which causes such Registration Statement or
Prospectus to omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, as well as any other corporate
developments, public filings with the SEC or similar events causing
such
12
Registration Statement not to be effective or the Prospectus not to be
useable for resales and (vi) of the reasonable determination of the
Company that a post-effective amendment to the Registration Statement
would be appropriate;
(f) obtain the withdrawal of any order suspending the effectiveness
of a Registration Statement at the earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes and Registrable Debentures included within the
coverage of such Shelf Registration Statement, without charge, at
least one conformed copy of each Registration Statement relating to
such Shelf Registration and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Notes and Registrable Debentures to facilitate
the timely preparation and delivery of certificates representing
Registrable Notes and Registrable Debentures to be sold and not
bearing any restrictive legends (except any customary legend borne by
securities held through The Depository Trust Company or any similar
depository) and in such denominations (consistent with the provisions
of the Indenture and the officers' certificate establishing the forms
and the terms of the Notes and the Debentures pursuant to the
Indenture) and registered in such names as the selling Holders or the
underwriters may reasonably request at least two Business Days prior
to the closing of any sale of Registrable Notes or Registrable
Debentures pursuant to such Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, promptly after the occurrence of any event specified in
Section 3(e)(ii), 3(e)(iii), 3(e)(v) (subject to a 60-day grace period
within any twelve-month period) or 3(e)(vi) hereof, prepare a
supplement or post-effective amendment to such Registration Statement
or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes and Registrable
Debentures, such Prospectus will not include any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and the Company shall notify each Holder to
suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event, and each Holder hereby agrees to suspend
use of the Prospectus until the Company has amended or supplemented
the Prospectus to correct such misstatement or omission;
(j) obtain a CUSIP number for the Exchange Notes and the Exchange
Debentures or the Registrable Notes and the Registrable Debentures, as
the case may be, not later than the effective date of a Registration
Statement, and provide the Trustee with certificates for the Exchange
Notes, the Exchange Debentures, the
13
Registrable Notes or the Registrable Debentures, as the case may be,
in a form eligible for deposit with the Depositary;
(k) cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (the "TIA"), in connection with the registration
of the Exchange Notes and Exchange Debentures or Registrable Notes and
Registrable Debentures, as the case may be, and effect such changes to
such documents as may be required for them to be so qualified in
accordance with the terms of the TIA and execute, and 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 such documents to be so qualified in a timely
manner;
(l) in the case of a Shelf Registration, enter into such agreements
(including underwriting agreements) as are customary in underwritten
offerings and take all such other appropriate actions in connection
therewith as are reasonably requested by (1) in the case of the
Registrable Notes, the Holders of at least 25% in aggregate principal
amount of the Registrable Notes in order to expedite or facilitate the
registration or the disposition of the Registrable Notes and (2) in
the case of the Registrable Debentures, the Holders of at least 25% in
aggregate principal amount of the Registrable Debentures in order to
expedite or facilitate the registration or the disposition of the
Registrable Debentures;
(m) in the case of a Shelf Registration, whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration, if requested by (x) an
Initial Purchaser, in the case where such Initial Purchaser holds
Notes or Debentures acquired by it as part of its initial placement
and (y) Holders of at least 25% in aggregate principal amount of the
Registrable Notes or 25% in aggregate principal amount of Registrable
Debentures, as the case may be, covered thereby: (i) make such
representations and warranties to Holders of such Registrable Notes or
Registrable Debentures and the underwriters (if any), with respect to
the business of the Company and the subsidiaries of the Company as
then conducted and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings, and confirm the same if and
when requested; (ii) obtain opinions of counsel to the Company and
updates thereof (which may be in the form of a reliance letter) in
form and substance reasonably satisfactory to the managing
underwriters (if any) and the Holders of a majority in amount of the
Registrable Notes or Registrable Debentures being sold, addressed to
each selling Holder and the underwriters (if any) covering the matters
customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such
underwriters (it being agreed that the matters to be covered by such
opinion may be subject to customary qualifications and exceptions);
(iii) obtain "cold comfort" letters and updates thereof in form and
substance reasonably satisfactory to the managing underwriters from
the independent certified public accountants of the Company and its
subsidiaries (and, if necessary, any other independent certified
public accountants of any business acquired or to be acquired by the
14
Company for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to
each of the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings and such other
matters as reasonably requested by such underwriters in accordance
with Statement on Auditing Standards No. 72; and (iv) if an
underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those
set forth in Section 4 hereof (or such other provisions and procedures
acceptable to Holders of a majority (1) in aggregate principal amount
of Registrable Notes or (2) in aggregate principal amount of
Registrable Debentures, as the context requires, covered by such
Registration Statement and the managing underwriters) customary for
such agreements with respect to all parties to be indemnified pursuant
to said Section (including, without limitation, such underwriters and
selling Holders); and in the case of an underwritten registration, the
above requirements shall be satisfied at each closing under the
related underwriting agreement or as and to the extent required
thereunder;
(n) if (1) a Shelf Registration is filed pursuant to Section 2(b) or
(2) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes or Exchange Debentures during the Applicable Period,
make reasonably available for inspection by any selling Holder of
Registrable Notes or Registrable Debentures or Participating Broker-
Dealer, as applicable, who certifies to the Company that it has a
current intention to sell Registrable Notes or Registrable Debentures
pursuant to the Shelf Registration, any underwriter participating in
any such disposition of Registrable Notes or Registrable Debentures,
if any, and any attorney, accountant or other agent retained by any
such selling Holder, Participating Broker-Dealer, as the case may be,
or underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during the Company's normal business hours, all
financial and other records, pertinent organizational and operational
documents and properties of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to
enable them to conduct due diligence activities, and cause the
officers, trustees and employees of the Company and its subsidiaries
to supply all relevant information in each case reasonably requested
by any such Inspector in connection with such Registration Statement;
records and information which the Company determines, in good faith,
to be confidential and any Records and information which it notifies
the Inspectors are confidential shall not be disclosed to any
Inspector except where (i) the disclosure of such Records or
information is necessary to avoid or correct a material misstatement
or omission in such Registration Statement, (ii) the release of such
Records or information is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction or is necessary in
connection with any action, suit or proceeding or (iii) such Records
or information previously has been made generally available to the
public; each selling Holder of such Registrable Notes or Registrable
Debentures and each such Participating Broker-Dealer will be required
to agree in writing that Records and
15
information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Company unless and until
such is made generally available to the public through no fault of an
Inspector or a selling Holder; and each selling Holder of such
Registrable Notes or Registrable Debentures and each such
Participating Broker-Dealer will be required to further agree in
writing that it will, upon learning that disclosure of such Records or
information is sought in a court of competent jurisdiction, or in
connection with any action, suit or proceeding, give notice to the
Company and allow the Company at its expense to undertake appropriate
action to prevent disclosure of the Records and information deemed
confidential;
(o) comply with all applicable rules and regulations of the SEC so
long as any provision of this Agreement shall be applicable and make
generally available to its securityholders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 60 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Notes and/or Registrable Debentures are sold to
underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
after the effective date of a Registration Statement, which statements
shall cover said 12-month periods, provided that the obligations under
this paragraph (o) shall be satisfied by the timely filing of
quarterly and annual reports on Forms 10-Q and 10-K under the Exchange
Act;
(p) upon consummation of an Exchange Offer, if requested by the
Trustee, obtain an opinion of counsel to the Company addressed to the
Trustee for the benefit of all Holders of Registrable Notes or
Registable Debentures participating in the Exchange Offer,
substantially to the effect that (i) the Company has duly authorized,
executed and delivered the Exchange Notes or Exchange Debentures, as
the case may be, and (ii) each of the Exchange Notes or Exchange
Debentures constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company, in accordance with its
respective terms (in each case, with customary exceptions);
(q) if an Exchange Offer is to be consummated, upon delivery of the
Registrable Notes and Registrable Debentures by Holders to the Company
(or to such other Person as directed by the Company), in exchange for
the Exchange Notes and Exchange Debentures, the Company shall xxxx, or
cause to be marked, on such Registrable Notes and Registrable
Debentures delivered by such Holders that such Registrable Notes and
Registrable Debentures are being cancelled in exchange for the
Exchange Notes and Exchange Debentures; it being understood that in no
event shall such Registrable Notes or Registrable Debentures be marked
as paid or otherwise satisfied;
16
(r) cooperate with each seller of Registrable Notes or Registrable
Debentures covered by any Registration Statement and each underwriter,
if any, participating in the disposition of such Registrable Notes or
Registrable Debentures and their respective counsel in connection with
any filings required to be made with the NASD;
(s) take all other steps necessary to effect the registration of the
Registrable Notes and Registrable Debentures covered by a Registration
Statement contemplated hereby;
(t) (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 the Initial Purchasers or another representative 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 Registrable Notes or Registrable Debentures acquired
for its own account as a result of market-making activities or other
trading activities (a "Participating Broker-Dealer") and that will be
the beneficial owner (as defined in Rule 13d-3 under the Exchange Act)
of Exchange Notes or Exchange Debentures 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 Initial
Purchasers or such other representative, represent the prevailing
views of the staff of the SEC, including a statement that any such
broker-dealer who receives Exchange Notes for Registrable Notes and/or
Exchange Debentures for Registrable Debentures pursuant to the
Exchange Offer may be deemed a statutory underwriter and must deliver
a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes or Exchange
Debentures, (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 (the Company hereby
consents 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
Securities Act, including all Participating Broker-Dealers, in
connection with the sale or transfer of the Exchange Notes or Exchange
Debentures covered by the Prospectus or any amendment or supplement
thereto), (iii) use its reasonable best efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
Prospectus contained therein in order to permit such Prospectus to be
lawfully delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such
Persons must comply with such requirements under the Securities Act
and applicable rules and regulations in order to resell the Exchange
Notes or the Exchange Debentures; provided, however, that such period
shall not be required to exceed 180 days (or such longer
17
period if extended pursuant to the last sentence of Section 3 hereof)
(the "Applicable Period"), 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 Registrable Notes
or Registrable Debentures 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 Securities Act in
connection with any resale of Exchange Notes or Exchange Debentures
received in respect of such Registrable Notes or Registrable
Debentures 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 Registrable Notes or Registrable
Debentures, the broker-dealer will not be deemed to admit that it is
an underwriter within the meaning of the Securities Act; and
(B) in the case of any Exchange Offer Registration Statement, the
Company agrees to deliver to the Initial Purchasers or to another
representative of the Participating Broker-Dealers, if reasonably
requested by an Initial Purchaser or such other representative of
Participating Broker-Dealers, on behalf of the Participating Broker-
Dealers upon consummation of the Exchange Offer (i) an opinion of
counsel in form and substance reasonably satisfactory to such Initial
Purchaser or such other representative of the Participating Broker-
Dealers, covering the matters customarily covered in opinions
requested in connection with Exchange Offer Registration Statements
and such other matters as may be reasonably requested (it being agreed
that the matters to be covered by such opinion may be subject to
customary qualifications and exceptions), (ii) an officers'
certificate containing certifications substantially similar to those
set forth in Section 5(c) of the Purchase Agreement and such
additional certifications as are customarily delivered in a public
offering of debt securities and (iii) upon the effectiveness of the
Exchange Offer Registration Statement, comfort letters, in each case,
in customary form if permitted by Statement on Auditing Standards No.
72.
The Company may require each seller of Registrable Notes or
Registrable Debentures as to which any registration is being effected to furnish
to the Company such information regarding such seller as may be required by the
staff of the SEC to be included in a Registration Statement. The Company may
exclude from such registration the Registrable Notes and the Registrable
Debentures of any seller who unreasonably fails to furnish such information
within a reasonable time after receiving such request. The Company shall have
no obligation to register under the Securities Act the Registrable Notes or
Registrable Debentures of a seller who so fails to furnish such information.
18
In the case of a Shelf Registration Statement, or if Participating
Broker-Dealers who have notified the Company that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as provided in
this Section 3(t) hereof are seeking to sell Exchange Notes or Exchange
Debentures and are required to deliver Prospectuses, each Holder agrees that,
upon receipt of any notice from the Company of the occurrence of any event
specified in Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such
Holder will forthwith discontinue disposition of Registrable Notes and
Registrable Debentures pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(i) hereof or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be resumed, and, if so
directed by the Company, such Holder will deliver to the Company (at the
Company's expense) all copies in such Holder's possession, other than permanent
file copies then in such Holder's possession, of the Prospectus covering such
Registrable Notes, Registrable Debentures, Exchange Notes, or Exchange
Debentures, as the case may be, current at the time of receipt of such notice.
If the Company shall give any such notice to suspend the disposition of
Registrable Notes, Registrable Debentures, Exchange Notes or Exchangeable
Debentures , as the case may be, pursuant to a Registration Statement, the
Company shall use its reasonable best efforts to file and have declared
effective (if an amendment) as soon as practicable after the resolution of the
related matters an amendment or supplement to the Registration Statement and
shall extend the period during which such Registration Statement is required to
be maintained effective and the Prospectus usable for resales pursuant to this
Agreement by the number of days in the period from and including the date of the
giving of such notice to and including the date when the Company shall have made
available to the Holders (x) copies of the supplemented or amended Prospectus
necessary to resume such dispositions or (y) the Advice.
4. Indemnification and Contribution. (a) In connection with any
Registration Statement, the Company shall indemnify and hold harmless the
Initial Purchasers, each Holder, each underwriter who participates in an
offering of the Registrable Notes or Registrable Debentures, each Participating
Broker-Dealer, each Person, if any, who controls any of such parties within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
and each of their respective directors, officers, employees and agents, 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),
covering Registrable Notes, Registrable Debentures, Exchange Notes, or
Exchange Debentures, as applicable, or the omission or alleged
omission therefrom of a material fact required to be stated 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) hereof) any such settlement is effected with the prior
written consent of the Company; and
19
(iii) against any and all expenses whatsoever, as incurred (including
the reasonable fees and disbursements of counsel chosen by such
Holder, such Participating Broker-Dealer, or any underwriter (except
to the extent otherwise expressly provided in Section 4(c) hereof)),
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) of this Section 4(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished in writing to the Company by the
Initial Purchasers or such Holder, underwriter or Participating Broker-Dealer
for use in a Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto).
(b) Each of the Initial Purchasers and each Holder, underwriter or
Participating Broken-Dealer agrees, severally and not jointly, to indemnify and
hold harmless the Company and each Person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all loss, liability, claim, damage and expense
whatsoever 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 a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Holder expressly for use in such Registration Statement (or any
amendment thereto), or any such Prospectus (or any amendment or supplement
thereto); provided, however, that in the case of a Shelf Registration Statement,
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 Registrable Notes or
Registrable Debentures 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 commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have under this Section 4 to the extent that it is
not materially prejudiced by such failure as a result thereof, and in any event
shall not relieve it from liability which it may have otherwise on account of
this indemnity agreement. In the case of parties indemnified pursuant to
Section 4(a) or (b) above, counsel to the indemnified parties shall be selected
by such parties. 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. In no event shall the indemnifying parties be
liable for the fees and expenses of more than one counsel (in addition to local
counsel), separate from their own counsel, for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified
20
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 written 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 validly 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) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unenforceable by an indemnified party
although applicable in accordance with its terms, the Company and the Holders
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement incurred by the
Company and the Holders, as incurred; provided, however, that 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 that was not
guilty of such fraudulent misrepresentation. As between the Company and the
Holders, such parties shall contribute to such aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement in such proportion as shall be appropriate to reflect the relative
fault of the Company, on the one hand, and the Holders, on the other hand, with
respect to the statements or omissions which resulted in such loss, liability,
claim, damage or expense, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault of the Company, on the
one hand, and of the Holders, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, on the one hand, or by or on
behalf of the Holders, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Holders agree that it would not be
just and equitable if contribution pursuant to this Section 4 were to be
determined by pro rata allocation or by any other method of allocation that does
not take into account the relevant equitable considerations. For purposes of
this Section 4, each Affiliate of a Holder, and each director, officer and
employee and Person, if any, who controls a Holder or such Affiliate within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as such Holder and each Person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to contribution
as the Company.
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5. Participation in an Underwritten Registration. No Holder may
participate in an underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Notes or Registrable Debentures on the
basis provided in the underwriting arrangement approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents reasonably required under the
terms of such underwriting arrangements.
6. Selection of Underwriters. The Holders of Registrable Notes
and/or Registrable Debentures covered by the Shelf Registration Statement who
desire to do so may sell the Securities covered by such Shelf Registration in an
underwritten offering, subject to the provisions of Section 3(l) hereof. In any
such underwritten offering, the underwriter or underwriters and manager or
managers that will administer the offering will be selected by the Holders of a
majority in aggregate principal amount of the Registrable Notes and/or a
majority in aggregate principal amount of the Registrable Debentures included in
such offering; provided, however, that such underwriters and managers must be
reasonably satisfactory to the Company.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Notes or Registrable Debentures remain outstanding, the Company will
file the reports required to be filed by it under the Securities Act and Section
13(a) or 15(d) of the Exchange Act and the rules and regulations adopted by the
SEC thereunder; provided, however, that if the Company ceases to be so required
to file such reports, it will, upon the request of any Holder of Registrable
Notes or Registrable Debentures, (a) make publicly available such information as
is necessary to permit sales of its securities pursuant to Rule 144 under the
Securities Act, (b) deliver such information to a prospective purchaser as is
necessary to permit sales of its securities pursuant to Rule 144A under the
Securities Act, 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 Registrable Notes or Registrable Debentures without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such rule may be amended
from time to time, (ii) Rule 144A under the Securities 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 Registrable Notes or
Registrable Debentures, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into,
nor will the Company on or after the date of this Agreement enter into, any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Notes or the Registrable Debentures in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or
22
consents to departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of Holders of a majority in aggregate
principal amount of the outstanding Registrable Notes or a majority in aggregate
principal amount of the outstanding Registrable Debentures affected by such
amendment, modification, supplement, waiver or departure; provided that no
amendment, modification or supplement or waiver or consent to the departure with
respect to the provisions of Section 4 hereof shall be effective as against any
Holder of Registrable Notes or Registrable Debentures unless consented to in
writing by such Holder of Registrable Notes or Registrable Debentures.
Notwithstanding the foregoing sentence, (i) this Agreement may be amended,
without the consent of any Holder of Registrable Notes or Registrable
Debentures, by written agreement signed by the Company and the Initial
Purchasers, to cure any ambiguity, correct or supplement any provision of this
Agreement that may be inconsistent with any other provision of this Agreement or
to make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with other provisions of this
Agreement, (ii) this Agreement may be amended, modified or supplemented, and
waivers and consents to departures from the provisions hereof may be given, by
written agreement signed by the Company and the Initial Purchasers to the extent
that any such amendment, modification, supplement, waiver or consent is, in
their reasonable judgment, necessary or appropriate to comply with applicable
law (including any interpretation of the Staff of the SEC) or any change therein
and (iii) to the extent any provision of this Agreement relates to an Initial
Purchaser, such provision may be amended, modified or supplemented, and waivers
or consents to departures from such provisions may be given, by written
agreement signed by such Initial Purchaser and the Company.
(d) 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
(i) 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 7(d), which address initially is, with respect to each Initial
Purchaser, the address set forth in the Purchase Agreement; and (ii) if to the
Company, initially at the Company's 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 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of the
Initial Purchasers, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Notes or Registrable Debentures in violation of the terms of the
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Purchase Agreement or the Indenture. If any transferee of any Holder shall
acquire Registrable Notes or Registrable Debentures in any manner, whether by
operation of law or otherwise, such Registrable Notes or Registrable Debentures
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Notes or Registrable Debentures, 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 and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiaries. Each Holder and any Participating
Broker-Dealer shall be third party beneficiaries of the agreements made
hereunder between the Initial Purchasers and the Company, and the Initial
Purchasers shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights or
the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE
IN THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT,
AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE PARTIES
HERETO AGREES TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY
DEFENSE OF LACK OF PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY
SUCH COURT. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
24
(k) Securities Held by the Company or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes or
Registrable Debentures is required hereunder, Registrable Notes or Registrable
Debentures held by the Company or its Affiliates shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
IMC GLOBAL INC.
By: /s/ E. Xxxx Xxxx, Jr.
-----------------------------------
Name: E. Xxxx Xxxx, Jr.
Title: Vice President and Treasurer
Confirmed and accepted as of
the date first above
written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
X.X. XXXXXX SECURITIES INC.
CHASE SECURITIES INC.
SALOMON BROTHERS INC
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
For itself and as Representative of the
several Initial Purchasers
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Authorized Signatory
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