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EXHIBIT 4(h)
EXECUTION COPY
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6 1/2% CONVERTIBLE
SUBORDINATED NOTES DUE 2006
REGISTRATION RIGHTS AGREEMENT
Dated as of November 22, 1999
by and among
CheckFree Holdings Corporation,
the Guarantors Signatories Hereto
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Deutsche Bank Securities Inc.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS......................................................1
SECTION 2. SHELF REGISTRATION...............................................4
(a) Shelf Registration......................................4
(b) Obligations of Holders..................................5
(c) Restrictions by Company of Offers and Sales.............7
SECTION 3. LIQUIDATED DAMAGES...............................................7
SECTION 4. REGISTRATION PROCEDURES..........................................9
(a) Shelf Registration......................................9
(b) Effectiveness and Amendments............................9
(c) Notifications, Information and Deliveries..............10
(d) Additional Procedures for Underwritten Offerings.......12
(e) Miscellaneous Procedures...............................13
SECTION 5. REGISTRATION EXPENSES...........................................14
(a) General................................................14
(b) Restrictions on Counsel Fees...........................14
SECTION 6. INDEMNIFICATION.................................................15
(a) By the Company.........................................15
(b) By the Holders.........................................16
(c) Notice and Defense of Claims...........................16
(d) Contribution...........................................17
(e) Certain Limitations on Contribution....................18
SECTION 7. INFORMATION REQUIREMENTS........................................18
SECTION 8. UNDERWRITTEN REGISTRATIONS......................................19
(a) Selection of Underwriter...............................19
(b) Participation by Holders...............................19
(c) Lock-Up................................................19
(d) Indemnification........................................19
(e) Expenses of an Underwritten Offering...................19
SECTION 9. MISCELLANEOUS...................................................19
(a) Remedies...............................................20
(b) No Conflicting Agreements..............................20
(c) No Piggybacks on Registration Statement................20
(d) Amendments and Waivers.................................20
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(e) Third Party Beneficiaries..............................20
(f) Notices................................................20
(g) Successors and Assigns.................................22
(h) Counterparts...........................................22
(i) Headings...............................................22
(j) Governing Law..........................................22
(k) Severability...........................................22
(l) Entire Agreement.......................................22
(m) Further Assurances.....................................22
(n) Termination............................................23
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REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (this "Agreement") is made and
entered into as of November 22, 1999 by and among CheckFree Holdings
Corporation, a Delaware corporation (the "Company"), the subsidiaries of the
Company listed on the signature pages hereto (the "Guarantors"), and ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Deutsche Bank Securities Inc. and
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC. (each an "Initial Purchaser" and, collectively, the
"Initial Purchasers"), each of whom has agreed to purchase the Company's 6 1/2%
Convertible Subordinated Notes due 2006 (the "Notes") pursuant to the Purchase
Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
November 22, 1999 (the "Purchase Agreement"), by and among the Company, the
Guarantors and the Initial Purchasers. In order to induce the Initial Purchasers
to purchase the Notes, the Company and the Guarantors have agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchasers set
forth in the fifth paragraph of the Purchase Agreement. Capitalized terms used
herein and not otherwise defined shall have the meaning assigned to them in the
Indenture, dated as of the Closing Date, between the Company and Fifth Third
Bank, as Trustee, and the First Supplemental Indenture, dated as of the Closing
Date, among the Company, the Guarantors and Fifth Third Bank, as Trustee,
relating to the Notes (together the "Indenture").
The Company and the Guarantors agree with the Initial Purchasers, ((i)
for their benefit as Initial Purchasers and (ii) for the benefit of the Holders
(as defined below)),to perform their respective obligations set forth below:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms not
otherwise defined herein shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Business Day: Any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking
institutions in New York, New York are authorized or
required by law or executive order to close.
Closing Date: The date of the issuance and delivery of the Notes.
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Common Stock: Common Stock, $.01 par value per share, of the
Company, as issuable or issued upon conversion of
the Notes.
Commission: The Securities and Exchange Commission.
Default Period: As defined in Section 3.
Effectiveness Deadline: As defined in Section 2(a) hereof.
Effectiveness Period: The period commencing with the date on which the
Commission declares a Registration Statement
effective and ending on the date on which all
Registrable Securities have ceased to be Registrable
Securities.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission
promulgated thereunder.
Exempt Resales: The transactions in which the Initial Purchasers
propose to sell the Notes to certain "qualified
institutional buyers," as such term is defined in
Rule 144A under the Act.
Filing Deadline: As defined in Sections 2(a) hereof.
Guarantors: As defined in the preamble hereto.
Holder: Each of the holders from time to time of the Notes
(including the Initial Purchasers) and each of the
holders from time to time of the Common Stock issued
upon conversion of the Notes.
Liquidated Damages: As defined in Section 3.
Managing Underwriters: The investment banking firm or firms that shall
manage or co-manage an Underwritten Offering,
subject to the provisions of Section 8(a).
Notes: The 6 1/2% Convertible Subordinated Notes being
issued and sold pursuant to the Purchase Agreement
and the Indenture (including the Subsidiary
Guarantee, as defined in the Indenture).
Person: Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust,
unincorporated organization or government or any
agency or political subdivision thereof.
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Prospectus: The prospectus included in a Registration Statement
at the time such Registration Statement is declared
effective, as amended or supplemented by any
prospectus supplement and by all other amendments
thereto, including post-effective amendments, all
material incorporated by reference into such
Prospectus and any information previously omitted in
reliance upon Rule 430A of the Act.
Registrable Securities: (A) The Common Stock of the Company into which the
Notes are convertible or converted, whether or not
such Notes have been converted, and at all times
subsequent thereto, and any Common Stock issued with
respect thereto upon any stock dividend, split or
similar event until, in the case of any such Common
Stock, (i) it is effectively registered under the
Act and disposed of in accordance with the
Registration Statement covering it, (ii) it is
saleable by the holder thereof pursuant to Rule
144(k) (or any successor provision) or (iii) it is
sold to the public pursuant to Rule 144, and, as a
result of the event or circumstance described in any
of the foregoing clauses (i) through (iii), the
legends with respect to transfer restrictions
required under the Indenture (other than any such
legends required solely as the consequence of the
fact that such Common Stock (or the Notes, upon the
conversion of which such Common Stock was issued or
is issuable) is owned by, or was previously owned
by, the Company or an Affiliate of the Company) are
removed or removable in accordance with the terms of
the Indenture; and (B) the Notes, until, in the case
of any such Note, (i) it is converted into shares of
Common Stock in accordance with the terms of the
Indenture, (ii) it is effectively registered under
the Act and disposed of in accordance with the
Registration Statement covering it, (iii) it is
saleable by the holder thereof pursuant to Rule
144(k) (or any successor provision) or (iv) it is
sold to the public pursuant to Rule 144, and, as a
result of the event or circumstance described in any
of the foregoing clauses (ii) through (iv), the
legends with respect to transfer restrictions
required under the Indenture (other than any such
legends required solely as the consequence of the
fact that such Note is owned by, or was previously
owned by, the Company or an Affiliate of the
Company) are removed or removable in accordance with
the terms of the Indenture.
Registration Default: As defined in Section 3 hereof.
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Registration Statement: Any registration statement of the Company and the
Guarantors which covers any of the Registrable
Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and
supplements to such registration statement,
including post-effective amendments, all exhibits,
and all material incorporated by reference or deemed
to be incorporated by reference therein.
Requisite Information: As defined in Section 2(b) hereof.
Rule 144: Rule 144 promulgated under the Act, as such Rule may
be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission.
Rule 144A: Rule 144A promulgated under the Act, as such Rule
may be amended from time to time, or any similar
rule or regulation hereafter adopted by the
Commission.
Selling Holder: As defined in Section 2(b) hereof.
Special Counsel: Ropes & ▇▇▇▇, or such successor counsel to the
Holders as shall be specified by the Holders of a
majority of the Registrable Securities, the
reasonable fees and expenses of which will be paid
by the Company and the Guarantors pursuant to
Section 5(b) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the
Indenture.
Underwritten Offering: A registration in which securities of the Company or
the Guarantors are sold to one or more underwriters
for reoffering to the public.
SECTION 2. SHELF REGISTRATION
(a) Shelf Registration.
(i) As soon as practicable after the Closing Date but in no
event later than 60 days after the Closing Date (such 60th day, the "Filing
Deadline"), the Company shall file with the Commission a Registration Statement
for an offering, to be made on a continuous basis pursuant to Rule 415 under the
Act, registering the resale from time to time of all the Registrable Securities
by Holders thereof.
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(ii) The Company shall use its reasonable best efforts to
cause such Registration Statement to become effective as soon as practicable but
in no event later than 120 days after the Closing Date (such 120th day, the
"Effectiveness Deadline"). The Company shall use its reasonable best efforts to
keep the Registration Statement continuously effective, supplemented and amended
as required by the provisions of Section 4 hereof, to the extent necessary to
ensure that the Registration Statement is available for sales of Registrable
Securities by the Holders thereof until the expiration of the Effectiveness
Period. The Company shall ensure that such Registration Statement conforms with
the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time during the
Effectiveness Period. The Company shall also supplement and amend the
Registration Statement if reasonably requested (A) by the Initial Purchasers or
by the Trustee on behalf of the Holders of a majority of the Registrable
Securities covered by such Registration Statement or (B) by any Managing
Underwriter, in the event of an Underwritten Offering.
(iii) The Company shall cause the Guarantors to take such
action as required, under the Act or otherwise, to effectuate the purposes of
this Section 2 and Section 4 hereof.
(b) Obligations of Holders. Each Holder agrees that if it wishes to
sell its Registrable Securities pursuant to a Registration Statement and related
Prospectus, it will do so only in accordance with this Section 2(b).
(i) Each Holder agrees to give written notice to the Company
at least five Business Days prior to any intended distribution of Registrable
Securities under a Registration Statement, which notice shall specify the date
on which such Holder intends to begin such distribution and any information with
respect to such Holder and the intended distribution of Registrable Securities
by such Holder as may be required to amend the Registration Statement or
supplement the related Prospectus with respect to such intended distribution of
Registrable Securities by such Holder (the "Requisite Information"). In the
event the Holder fails to provide the the Requisite Information in its initial
notice of its intention to distribute the Registrable Securities pursuant to the
Registration Statement, the Company will promptly request such Holder to provide
such Requisite Information.
(ii) As soon as practicable after the date such notice and
Requisite Information is provided by such Holder (after having provided
Requisite Information, a "Selling Holder"), and in any event within four
Business Days after such date, the Company shall, if necessary, prepare and file
with the Commission a post-effective amendment to the Registration Statement or
a supplement to the related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file any other required document
so that such Registration Statement will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the
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statements therein not misleading, and so that, as thereafter delivered to
purchasers of the Registrable Securities being sold thereunder, such Prospectus
will comply in all material respects with the rules and requirements under the
Act and will not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The Company shall provide each Selling Holder with copies of any
documents filed pursuant to this clause (ii) as soon as practicable, and it
shall inform each Selling Holder that the Company has complied with its
obligations hereunder (or that, if the Company has filed a post-effective
amendment to the Registration Statement which has not yet been declared
effective, the Company will notify the Selling Holder to that effect, will use
its reasonable efforts to secure the effectiveness of such post-effective
amendment and will promptly notify the Selling Holder when the amendment has
become effective).
(iii) Each Selling Holder will sell all or any of its
Registrable Securities pursuant to the Registration Statement and related
Prospectus only during the 45-day period commencing with the date on which the
Company gives notice, pursuant to clause (ii) above, that the Registration
Statement and Prospectus may be used for such purpose. The Selling Holders will
not sell any Registrable Securities pursuant to such Registration Statement or
Prospectus after such 45-day period without giving the Company a new notice of
intention to sell pursuant to this Section 2(b) and receiving a further notice
from the Company pursuant to clause (ii) above.
(iv) Each Holder agrees, by acquisition of the Registrable
Securities, that no Holder of Registrable Securities shall be entitled to sell
any of such Registrable Securities pursuant to a Registration Statement or to
receive a Prospectus relating thereto, unless such Holder has furnished the
Company with the notice and Requisite Information required pursuant to clause
(i) hereof and such other information regarding such Holder and the distribution
of such Registrable Securities as the Company may from time to time reasonably
request. The Company may exclude from such registration the Registrable
Securities of any Holder who does not furnish such information provided above
for so long as such information is not so furnished. Each Selling Holder agrees
promptly to furnish to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such
Selling Holder not misleading. Any sale of any Registrable Securities by any
Selling Holder shall constitute a representation and warranty by such Selling
Holder that the information relating to such Selling Holder and its plan of
distribution is as set forth in the Prospectus delivered by such Selling Holder
in connection with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact relating to
such Selling Holder or its plan of distribution and that such Prospectus does
not as of the time of such sale omit to state any material fact relating to such
Selling Holder or its plan of distribution necessary to make the statements in
such Prospectus, in light of the circumstances under which they were made, not
misleading.
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(c) Restrictions by Company of Offers and Sales. Notwithstanding
anything to the contrary in Section 4 of this Agreement, but subject to Section
3 of this Agreement, the Company may, by delivering written notice to the
Selling Holders, prohibit offers and sales of Registrable Securities pursuant to
a Registration Statement at any time if (A) (i) the Company or the Guarantors
are in possession of material non-public information relating to the Company or
the Guarantors, (ii) the Company determines (based on advice of counsel) that
such prohibition is necessary to avoid a requirement to disclose such material
non-public information to the public and (iii) the Company determines in good
faith that public disclosure of such material non-public information would not
be in the best interests of its stockholders or (B) (i) the Company or the
Guarantors have made a public announcement relating to an acquisition or
business combination transaction including the Company and/or one or more of the
Guarantors that is material to the Company and the Guarantors taken as a whole
and (ii) the Company determines in good faith that (x) offers and sales of
Registrable Securities pursuant to the Registration Statement prior to the
consummation of such transaction (or such earlier date as the Company shall
determine) is not in the best interests of the Company, the Guarantors and the
stockholders of the Company or (y) it would be impracticable at the time to
obtain any financial statements relating to such acquisition or business
combination transaction that would be required to be set forth in the
Registration Statement; provided, however, that upon (i) the public disclosure
by the Company or the Guarantors of the material non-public information
described in clause (A) of this paragraph or (ii) the consummation, abandonment
or termination of, or the availability of the required financial statements with
respect to a transaction described in clause (B) of this paragraph, the
suspension of the use of the Registration Statement pursuant to this Section
2(c) shall cease and the Company shall promptly notify the Selling Holders that
dispositions of the Registrable Securities may be resumed.
SECTION 3. LIQUIDATED DAMAGES
The parties hereto agree that the Holders will suffer damages if a
Registration Default (as defined in this Section 3) occurs and that it would not
be feasible to ascertain the extent of such damages with precision. Therefore,
if (i) the Registration Statement is not filed with the Commission on or prior
to the Filing Deadline, (ii) such Registration Statement has not been declared
effective by the Commission on or prior to the Effectiveness Deadline, or (iii)
such Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose (without being succeeded immediately by a post-effective
amendment to such Registration Statement that is itself declared effective
immediately and available for effecting resales of Registrable Securities) for a
period of time which shall exceed 30 days in the aggregate during any 3-month
period or 60 days in the aggregate during any 12-month period (each such event
referred to in clauses (i) through (iii), a "Registration Default"), then the
Company and the Guarantors agree, jointly and severally, to pay, as liquidated
damages, and not as a penalty, an additional amount to the Holders (the
"Liquidated Damages") for the period beginning on the date on which a
Registration Default occurred and ending on the date on which such
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Registration Default is cured (the "Default Period"). The Company and the
Guarantors shall pay Liquidated Damages: (i) to each Holder of a Note, accruing
at a rate equal to one-half of one percent per annum (50 basis points) on the
aggregate principal amount of Notes held by such Holder and (ii) to each Holder
of Common Stock, accruing at a rate equal to one-half of one percent per annum
(50 basis points) calculated on an amount equal to the product of (x) the
then-applicable "conversion price" (as defined in the Indenture), or, in the
event that all Notes have been converted to Common Stock, the conversion price
applicable to the Note last converted, times (y) the number of shares of Common
Stock held by such Holder. If the Default Period continues for a period in
excess of ninety (90) days from the date on which the Registration Default
occurred, the Company and the Guarantors shall pay additional Liquidated Damages
after such 90th day (i) to each Holder of a Note, accruing at a rate equal to
one-quarter of one percent per annum (25 basis points) on the aggregate
principal amount of the Notes held by such Holder and (ii) to each Holder of
Common Stock, accruing at a rate equal to one-quarter of one percent per annum
(25 basis points) calculated on an amount equal to the product of (x) the then
applicable conversion price, times (y) the number of shares of Common Stock held
by such Holder. Liquidated Damages shall again increase in the manner described
in the previous sentence after each 90-day period in which the Registration
Default has not been cured; provided, however, that in no event shall the
Company and the Guarantors pay Liquidated Damages greater than one percent per
annum. Liquidated Damages shall cease to accrue when a Registration Default
shall have been cured. A Registration Default shall be deemed cured (1) upon
filing of the Registration Statement, in the case of clause (i) above, (2) upon
the effectiveness of this Registration Statement, in the case of clause (ii)
above, or (3) upon the filing of a post-effective amendment or supplement to the
Registration Statement that causes the Registration Statement to again be
declared effective or made usable, in the case of clause (iii) above.
All accrued Liquidated Damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture, on
semiannual payment dates that correspond to interest payment dates for the
Notes. All obligations of the Company and the Guarantors set forth in the
preceding paragraph that are outstanding with respect to any Registrable
Security at the expiration of the Effectiveness Period shall survive until such
time as all such obligations with respect to such Notes shall have been
satisfied in full. The Trustee shall be entitled, on behalf of the Holders, to
seek any available remedy for the enforcement of this Agreement, including the
payment of Liquidated Damages. Notwithstanding the foregoing, the parties agree
that the sole damages payable in connection with a Registration Default shall be
the Liquidated Damages provided for in this Section 3. Nothing in this Section 3
shall preclude a Holder from pursuing or obtaining specific performance or other
equitable relief with respect to this Agreement, in addition to the payment of
Liquidated Damages.
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SECTION 4. REGISTRATION PROCEDURES
(a) Shelf Registration. Subject to Section 2(a), the Company shall use
its reasonable best efforts to effect the registration of the Registrable
Securities with the Commission as to permit their being sold in accordance with
the Requisite Information furnished to the Company. The Registration Statement
shall be filed on Form S-3 or on another appropriate form under the Act, which
form shall be available for the resale of the Registrable Securities in the
intended method or methods of distribution thereof (including, without
limitation, in the form of one or more Underwritten Offerings) within the time
periods and otherwise in accordance with the provisions hereof. The Company and
the Guarantors shall not be permitted to include in the Registration Statement
any securities other than the Registrable Securities and those securities
disclosed in Schedule 9(c).
(b) Effectiveness and Amendments. In connection with any Registration
Statement and any related Prospectus required by this Agreement, the Company
shall:
(i) use its reasonable best efforts to keep such Registration
Statement continuously effective for the Effectiveness Period. Upon the
occurrence of any event that would cause any Registration Statement (A) to
contain a material misstatement or omission or (B) not to be effective and
usable for resale of Registrable Securities during the Effectiveness Period, the
Company shall file promptly an appropriate amendment to such Registration
Statement curing such defect, and, if Commission review is required, use its
reasonable best efforts to cause such amendment to be declared effective as soon
as practicable;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement effective for the Effectiveness Period (subject
to Section 2(c) hereof), cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Act (or any similar provisions then in force), and to comply fully
with Rules 424, 430A and 462, as applicable, under the Act in a timely manner;
and comply with the provisions of the Act with respect to the disposition of all
Registrable Securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration Statement as
so amended or such Prospectus as so supplemented;
(iii) notify the Selling Holders, their Special Counsel, the
Initial Purchasers and the Managing Underwriters, if any, promptly and, if
requested by such persons, confirm such notice in writing (A) when the
Prospectus, any Prospectus supplement, a Registration Statement or
post-effective amendment relating to the Registrable Securities has been filed
with the Commission, and, with respect to any Registration Statement or any
post-effective amendment thereto, when the same has become effective, (B) of any
request by the Commission or any other federal or state governmental authority
for amendments to the Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension by any state
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securities commission of the qualification of the Registrable Securities for
offering or sale in any jurisdiction, or the initiation or threatening of any
proceeding for any of the preceding purposes, (D) of the existence of any fact
or the happening of any event that makes any statement of a material fact made
in the Registration Statement or the Prospectus therein untrue, or that requires
the making of any additions to or changes in the Registration Statement in order
to make the statements therein not misleading, or that requires the making of
any additions to or changes in the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading and (E) of the determination of the Company that a post-effective
amendment to a Registration Statement would be appropriate. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or exemption from
qualification of the Registrable Securities for offering or sale in any
jurisdiction, the Company shall use its reasonable best efforts to obtain the
withdrawal or lifting of such order at the earliest possible moment; and
(iv) subject to Section 4(b)(i), if any fact or event
contemplated by Section 4(b)(iii)(D) above shall exist or have occurred,
promptly prepare and file a supplement or post-effective amendment to the
Registration Statement or related Prospectus or file any other required document
(such as a Current Report on Form 8-K) so that, as thereafter delivered to the
purchasers of Registrable Securities, the Registration Statement shall not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and so that the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. In the case of a post-effective amendment to a
Registration Statement, the Company shall use its reasonable efforts to cause it
to become effective as soon as applicable.
(c) Notifications, Information and Deliveries. In connection with any
Registration Statement required by this Agreement, the Company shall:
(i) furnish to the Initial Purchasers, the Special Counsel and
the Managing Underwriters, if any, in connection with such sale before filing
with the Commission, copies of any Registration Statement which will be subject
to the review and comment of the Initial Purchasers, the Special Counsel and the
Managing Underwriters. The Company shall not file any Registration Statement to
which the Initial Purchasers, the Special Counsel or the Managing Underwriters
shall reasonably object within two Business Days after the receipt thereof;
(ii) make available at reasonable times for inspection by a
representative of the Selling Holders, the Managing Underwriters, if any, the
Special Counsel or any accountant retained by the Selling Holders all relevant
financial and other records and pertinent corporate documents of the Company and
the Guarantors and cause the officers, directors and employees
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of the Company and the Guarantors to supply all information reasonably requested
by any such Selling Holder, Managing Underwriters, if any, the Special Counsel
or accountant in connection with such Registration Statement or any
post-effective amendment thereto subsequent to the filing thereof and prior to
its effectiveness, in each case as is customary for similar due diligence
investigations; provided, however, that any information that is designated in
writing by the Company, in good faith, as confidential at the time of delivery
of such information shall be kept confidential by such Selling Holders, Managing
Underwriter, Special Counsel or accountant, unless such disclosure is made in
connection with a court proceeding or required by law, or such information
becomes available to the public generally or through a third party without an
accompanying obligation of confidentiality; and provided further that the
foregoing inspection and information gathering shall, to the greatest extent
possible, be coordinated on behalf of the Selling Holders and the other parties
entitled thereto by one counsel designated by and on behalf of such Selling
Holders and other parties reasonably acceptable to the Company;
(iii) if requested by the Selling Holders of a majority of the
Registrable Securities being sold, by the Initial Purchasers or by the Managing
Underwriters, if any, in connection with such sale, promptly include in any
Registration Statement or Prospectus, pursuant to a post-effective amendment or
supplement if necessary, such information as such Selling Holders, the Initial
Purchasers or Managing Underwriters, if any, may reasonably request to have
included therein, including, without limitation, information relating to the
"Plan of Distribution" of the Registrable Securities; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be included in such
Prospectus supplement or post-effective amendment, provided that the Company
shall not be required to take any actions under this clause (iii) that are not,
in the opinion of its counsel, in compliance with applicable law;
(iv) furnish to each Selling Holder, the Special Counsel, each
Initial Purchaser and each Managing Underwriter, if any, without charge, at
least one copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, except for documents incorporated by
reference therein and all exhibits, unless such documents and exhibits are
reasonably requested by such Persons; and
(v) deliver to each Selling Holder, the Special Counsel, each
Initial Purchaser and each Managing Underwriter, if any, without charge, as many
copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request, which
copies the Company hereby consent to the use (in accordance with law) by such
Persons, in connection with the offering and the sale of the Registrable
Securities covered by the Prospectus or any amendment or supplement thereto; and
(vi) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of Section 13 or
Section 15(d) of the Exchange Act.
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(d) Additional Procedures for Underwritten Offerings. Subject to
Section 8 hereof, upon the request of the Selling Holders, Initial Purchasers or
Managing Underwriters, the Company and the Guarantors shall enter into such
agreements (including underwriting agreements) and make such representations and
warranties and take all such other actions in connection therewith, in each case
in form, substance and scope as are customary in underwritten public offerings,
in order to expedite or facilitate the disposition of the Registrable Securities
pursuant to any Registration Statement as may be reasonably requested by such
Person in connection with any sale or resale pursuant to any applicable
Registration Statement and in such connection, the Company and the Guarantors
shall:
(i) upon request of the Selling Holders, the Special Counsel
or the Managing Underwriters, furnish to each such Person upon the effectiveness
of the Registration Statement:
(A) a certificate, dated such date, signed on behalf
of the Company and each Guarantor by (x) the President or any Senior Vice
President of the Company and each Guarantor and (y) a principal financial or
accounting officer of the Company and each Guarantor, confirming, as of the date
thereof, the applicable matters set forth in Section 1(a) of the Purchase
Agreement and such other similar matters as the Selling Holders, the Special
Counsel or the Managing Underwriters may reasonably request;
(B) an opinion, dated the date effectiveness of the
Registration Statement, of counsel for the Company and the Guarantors covering
matters similar to those set forth in Section 5(b) of the Purchase Agreement and
such other matters customarily covered in opinions requested in underwritten
offerings and such other matters as the Special Counsel and Managing
Underwriters may reasonably request, in form, scope and substance reasonably
satisfactory to the Special Counsel and the Managing Underwriters; and
(C) a customary comfort letter, dated as of the date
of effectiveness of the Registration Statement from the independent accountants
of the Company and the Guarantors, and updates thereof, in the customary form
and covering matters of the type customarily covered in comfort letters to
underwriters in connection with underwritten offerings, and affirming, at a
minimum, the matters set forth in the comfort letters delivered pursuant to
Section 5(d) of the Purchase Agreement; and
(ii) deliver such other documents and certificates as may be
reasonably requested by the Selling Holders, the Special Counsel and Managing
Underwriters to evidence compliance with clause (i) above and with any customary
conditions contained in any agreement entered into by the Company and the
Guarantors. The above shall be done at each closing under such underwriting or
similar agreement as and to the extent required thereunder.
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(e) Miscellaneous Procedures. In connection with any Registration
Statement and any related Prospectus required by this Agreement, the Company
shall:
(i) prior to any public offering of the Registrable
Securities, cooperate with the Selling Holders, the Managing Underwriters, if
any, and the Special Counsel in connection with the registration and
qualification (or exemption therefrom) of the Registrable Securities under the
securities or Blue Sky laws of such jurisdictions as such Persons may request,
maintain such registration and qualification (or exemption therefrom) during the
Effectiveness Period, and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the applicable Registration Statement; provided, however,
that the Company shall not be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that would
subject it to the service of process in suits or to taxation in any jurisdiction
where it is not now so subject;
(ii) in connection with any sale of Registrable Securities
that will result in such securities no longer being Registrable Securities,
cooperate with the Selling Holders to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and to register such Registrable Securities in
such denominations and such names as the Selling Holders may request at least
two Business Days prior to the sale of such Registrable Securities;
(iii) cause all shares of Common Stock covered by such
Registration Statement (A) to be listed on any securities exchange on which the
Common Stock is then listed or (B) to be authorized for quotation on the
National Association of Securities Dealers Automated Quotation System ("NASDAQ")
or the National Market System of NASDAQ, in each case no later than the date on
which the Registration Statement is declared effective, and to make such filings
under the Exchange Act as are required thereby and to have such filings declared
effective thereunder;
(iv) use its reasonable best efforts to cause the disposition
of the Registrable Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or authorities
as may be necessary to enable the seller to sellers thereof to consummate the
disposition of such Registrable Securities, subject to the proviso contained in
clause (i) above;
(v) provide a CUSIP number for all Registrable Securities not
later than the effective date of a Registration Statement covering such
Registrable Securities and provide the Trustee under the Indenture and the
transfer agent for the Common Stock with printed certificates for the
Registrable Securities which are in a form eligible for deposit with the
Depository Trust Company;
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(vi) comply with all applicable rules and regulations of the
Commission, and make generally available to the Holders a consolidated earnings
statement (which need not be audited) meeting the requirements of Rule 158 under
the Act and covering a twelve-month period beginning after the effective date of
the Registration Statement (as such term is defined in paragraph (c) of Rule 158
under the Act) no later than 45 days after the end of such 12-month period;
(vii) cause the Indenture to be qualified under the TIA not
later than the effective date of the Registration Statement required by this
Agreement and, in connection therewith, cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the TIA; and
execute and use their reasonable best efforts to cause the Trustee to execute,
all documents that may be required to effect such changes and all other forms
and documents required to be filed with the Commission to enable such Indenture
to be so qualified in a timely manner; and
(viii) cooperate and assist in any filings required to be made
with the National Association of Securities Dealers, Inc.
SECTION 5. REGISTRATION EXPENSES
(a) General. Except as set forth in Section 8(e), all expenses incident
to the performance of or compliance with this Agreement by the Company and the
Guarantors, will be borne by the Company and the Guarantors, jointly and
severally, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities and state Blue
Sky or securities laws; (iii) all expenses of printing (including printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company and printing of Prospectuses), messenger and delivery
services and telephone expenses relating to the obligations of the Company and
the Guarantors hereunder; (iv) all fees and disbursements of counsel for the
Company and the Guarantors and for the Holders (subject to Section 5(b) below);
(v) all application and filing fees in connection with listing the Common Stock
on a national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company and the Guarantors (including the
expenses of any special audit and comfort letters required by or incident to
such performance). The Company and the Guarantors will, in any event, bear their
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
(b) Restrictions on Counsel Fees. In connection with any Registration
Statement required by this Agreement, the Company and the Guarantors will
reimburse the Initial
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Purchasers and the Selling Holders for the reasonable fees and disbursements of
not more than one firm of attorneys, which firm shall be the Special Counsel or
any other firm chosen by the Holders of a majority of the Registrable Securities
for which the Registration Statement is being prepared.
SECTION 6. INDEMNIFICATION
(a) By the Company. The Company and the Guarantors agree, jointly and
severally, to indemnify and hold harmless each Initial Purchaser, each Holder,
their directors and officers and each Person, if any, who controls such Initial
Purchaser or Holder (within the meaning of Section 15 of the Act and Section
20(a) of the Exchange Act) (each such person being sometimes referred to herein
as an "Indemnified Holder"), from and against any and all losses, claims,
damages, liabilities, judgments (including without limitation, any reasonable
legal or other expenses incurred in connection with investigating or defending
any matter, including any action that could give rise to any such losses,
claims, damages, liabilities or judgments) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary Prospectus or Prospectus or arising out of
or based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments arise out of or are based upon information relating to any of the
Initial Purchasers or Holders furnished in writing to the Company by any of such
Initial Purchasers or Holders, provided, however, that the Company and the
Guarantors shall not be liable to any Holder (or any person controlling such
Holder) to the extent that any such losses, claims, damages, liabilities or
judgments arise out of or are based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary prospectus if
either (A)(i) such Holder failed to send or deliver a copy of the Prospectus
with or prior to delivery of written confirmation of the sale by such Holder to
the person asserting the claims from which such losses, claims, damages,
liabilities or judgments arise and (ii) the Prospectus would have corrected such
untrue statement or alleged untrue statement or such omission or alleged
omission, or (B)(x) such untrue statement or alleged untrue statement, omission
or alleged omission is corrected in an amendment or supplement to the Prospectus
and (y) having previously been furnished by or on behalf of the Company or the
Guarantors with copies of the Prospectus as so amended or supplemented, such
Holder thereafter fails to deliver such Prospectus as so amended or
supplemented, with or prior to the delivery of written confirmation of the sale
of a Registrable Security to the person asserting the claim from which such
losses, claims, damages, liabilities or judgments arise. The Company and the
Guarantors shall also indemnify each underwriter and each person who controls
such person (within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act) to the same extent and with the same limitations as
provided above with respect to the indemnification of the Initial Purchasers or
the Holders.
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(b) By the Holders. Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Initial Purchasers, the other Selling Holders,
the Company, the Guarantors and each of their directors and officers, and each
Person, if any, who controls (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) the Initial Purchasers, the other Selling
Holders, the Company and the Guarantors, to the same extent as the foregoing
indemnity from the Company and the Guarantors to each of the Indemnified
Holders, but only with reference to information relating to such Indemnified
Holder furnished in writing to the Company or the Guarantors by such Indemnified
Holder expressly for use in any Registration Statement or Prospectus. In no
event shall any Indemnified Holder be liable or responsible for any amount in
excess of the amount by which the total amount received by such Indemnified
Holder with respect to its sale of Registrable Securities pursuant to a
Registration Statement exceeds (i) the amount paid by such Indemnified Holder
for such Registrable Securities and (ii) the amount of any damages that such
Indemnified Holder has otherwise been required to pay to the Company and the
Guarantors pursuant to this Section 6(b) by reason of such untrue or alleged
untrue statement or omission or alleged omission.
(c) Notice and Defense of Claims. In case any action shall be commenced
involving any person in respect of which indemnity may be sought pursuant to
Section 6(a) or 6(b) (the "indemnified party"), the indemnified party shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying person") in writing and the indemnifying party shall assume the
defense of such action, including the employment of counsel reasonably
satisfactory to the indemnified party and the payment of all reasonable fees and
expenses of such counsel, as incurred (except that in the case of any action in
respect of which indemnity may be sought pursuant to both Sections 6(a) and
6(b), an Indemnified Holder shall not be required to assume the defense of such
action pursuant to this Section 6(c), but may employ separate counsel and
participate in the defense thereof, but the fees and expenses of such counsel,
except as provided below, shall be at the expense of the Indemnified Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or with separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all indemnified parties and all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated
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in writing by a majority of the Indemnified Holders, in the case of the parties
indemnified pursuant to Section 7(a), and by the Company and the Guarantors, in
the case of parties indemnified pursuant to Section 7(b). The indemnifying party
shall indemnify and hold harmless the indemnified party from and against any and
all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with its written consent or (ii) effected
without its written consent if the settlement is entered into more than twenty
business days after the indemnifying party shall have received a request from
the indemnified party for reimbursement for the reasonable fees and expenses of
counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action 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 the indemnified party.
(d) Contribution. To the extent that the indemnification provided for
in this Section 6 is unavailable to an indemnified party in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company and
the Guarantors, on the one hand, and the Holders, on the other hand, from their
sale of Registrable Securities or (ii) if the allocation provided by the
foregoing clause is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in such
foregoing clause above but also the relative fault of the Company and the
Guarantors on the one hand, and of the Indemnified Holder, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company and the Guarantors,
on the one hand, and of the Indemnified Holder, 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 and the
Guarantors, on the one hand, or by the Indemnified Holder, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and
judgments referred to above shall be deemed to include, subject to the
limitations set forth in Section 6(e), any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim.
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(e) Certain Limitations on Contribution. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages, liabilities or
judgments referred to in Section 6(d) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any matter,
including any action that could have given rise to such losses, claims, damages,
liabilities or judgments. Notwithstanding anything to the contrary in this
Section 6, no Holder or its related Indemnified Holders shall be require to
contribute, in the aggregate, any amount in excess of the amount by which the
total received by such Holder with respect to the sale of its Registrable
Securities pursuant to a Registration Statement exceeds the sum of (A) the
amount paid by such Holder for such Registrable Securities plus (B) the amount
of any damages which such Holder has otherwise been required to pay to the
Company and the Guarantors pursuant to this Section 6 by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute pursuant to
Sections 6(d) and (e) are several in proportion to the respective principal
amount of Registrable Securities held by each of the Holders hereunder and not
joint.
SECTION 7. INFORMATION REQUIREMENTS
The Company and the Guarantors agree with each Holder, for so long as
any Registrable Securities remain outstanding and during any period in which the
Company (i) is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of any Holder, to any Holder or beneficial owner of
Registrable Securities in connection with any sale thereof and any prospective
purchaser of Registrable Securities designated by such Holder or beneficial
owner, the information required by Rule 144(d)(4) under the Act in order to
permit resales of such Registrable Securities pursuant to Rule 144A, and (ii) is
subject to Section 13 or 15(d) of the Exchange Act, to make all filings required
thereby in a timely manner in order to permit resales of such Registrable
Securities pursuant to Rule 144. The Company and the Guarantors further covenant
that it will cooperate with any Holder and take such further reasonable action
as any Holder may reasonably request (including, without limitation, making such
reasonable representations as any such Holder may reasonably request), all to
the extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 and Rule 144A under the Securities Act.
Upon the request of any Holder, the Company and the Guarantors shall deliver to
such Holder a written statement as to whether it has complied with such filing
requirements. Notwithstanding the foregoing, nothing in this Section 7 shall be
deemed to require the Company to register any of its securities under any
section of the Exchange Act.
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SECTION 8. UNDERWRITTEN REGISTRATIONS
(a) Selection of Underwriter. If any of the Registrable Securities
covered by any Registration Statement are to be sold in an Underwritten
Offering, the Managing Underwriters that will administer the Underwritten
Offering will be selected by the Holders of a majority of such Registrable
Securities included in such Underwritten Offering, subject to the consent of the
Company (which will not be unreasonably withheld or delayed).
(b) Participation by Holders. No Holder may participate in any
Underwritten Offering hereunder unless such Holder (i) agrees to sell its
Registrable Securities on the basis reasonably provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements, (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements and (iii) at least 25% of the
outstanding Registrable Securities are included in such underwritten offering.
(c) Lock-Up. Each Holder agrees, if requested (pursuant to a timely
written notice) by the Managing Underwriters in an Underwritten Offering made
pursuant to a Registration Statement and to the extent permitted by applicable
law, not to effect any private sale or distribution (including a sale pursuant
to Rule 14(k) and Rule 144A, but excluding non-public sales to any of its
affiliates, officers, directors, employees and controlling persons) of any of
the Notes or Common Stock, during the period beginning 10 days prior to, and
ending 90 days after, the closing date of such underwritten offering.
(d) Indemnification. If any of the Registrable Securities covered by
any Registration are to be sold in an Underwritten Offering, the Managing
Underwriters, their controlling Persons and their respective officers,
directors, employees, representatives and agents shall be entitled to
indemnification (substantially similar to the indemnification set forth in
Section 7 of this Agreement) from the Company, the Guarantors and the Selling
Holders, which indemnification shall be set forth in an underwriting agreement.
(e) Expenses of an Underwritten Offering. Each Selling Holder
participating in any Underwritten Offering shall be responsible for any expenses
customarily borne by a selling security holder, including underwriting discounts
and commissions and fees and expenses of counsel to such selling security
holder, and shall reimburse the Company and the Guarantors for its pro rata
share of the fees and disbursements of its counsel, its independent public
accountants and any printing expenses incurred in connection with such
Underwritten Offerings.
SECTION 9. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors acknowledge and agree that
any failure by the Company and the Guarantors to comply with its obligations
under this Agreement may result in material irreparable injury to the Initial
Purchasers or the Holders for
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which there is not adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the obligations of the Company and the
Guarantors hereunder; provided, that the sole damages payable for a Registration
Default shall be Liquidated Damages. The Company and the Guarantors further
agree to waive the defense in any action for specific performance that a remedy
at law would be adequate.
(b) No Conflicting Agreements. Neither the Company nor any of the
Guarantors have entered or will, on or after the date of this Agreement, enter
into any agreement with respect to any of their securities that is adverse to
the rights granted to the Holders in this Agreement or otherwise materially
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with the rights granted to the holders of
the Company's securities under any agreement in effect on the date hereof.
(c) No Piggybacks on Registration Statement. Except as disclosed in
Schedule 9(c), the Company has not granted and shall not grant to holders of any
securities other than Registrable Securities the right to include any securities
in any Registration Statement provided for in this Agreement.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless (i) in the case of Section 3
hereof and this Section 10(d)(i), the Company and the Guarantors have obtained
the written consent of Holders of all outstanding Registrable Securities and
(ii) in the case of all other provisions hereof, the Company and the Guarantors
have obtained the written consent of Holders of a majority of Registrable
Securities (excluding Registrable Securities held by the Company or its
Affiliates).
(e) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent they may
deem such enforcement necessary or advisable to protect their rights hereunder.
(f) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, Telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Security Registrar under
the Indenture; and
(ii) if to the Company or any Guarantor:
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CheckFree Holdings Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
With a copy to:
Porter, Wright, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
(iii) if to the Initial Purchasers or Special Counsel to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: IBK Counsel
and:
Ropes & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given at the time delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when receipt
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.
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(g) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Registrable Securities; provided, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms hereof or of the Purchase
Agreement or the Indenture. If any transferee of any Holder shall acquire
Registrable Securities in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement, including the restrictions on resale
set forth in this Agreement and, if applicable, the Purchase Agreement, and such
Person shall be entitled to receive the benefits hereof.
(h) 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.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(k) 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.
(l) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
(m) Further Assurances. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and the other
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26
documents contemplated hereby and consummate and make effective the transactions
contemplated hereby.
(n) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Sections 5 and 6 hereof and the obligations
to make payments of and provide for liquidated damages under Section 3 hereof to
the extent such damages accrue prior to the end of the Effectiveness Period,
each of which shall remain in effect in accordance with their terms.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CHECKFREE HOLDINGS CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
CHECKFREE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
CHECKFREE INVESTMENT CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
CHECKFREE MANAGEMENT CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Treasurer
CHECKFREE INVESTMENT SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇
& ▇▇▇▇▇ INCORPORATED
DEUTSCHE BANK SECURITIES INC.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
