EXHIBIT 4.3
HASBRO, INC.
$225,000,000
2.75% Convertible Senior Debentures due 2021
REGISTRATION AGREEMENT
New York, New York
November 30, 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
As Representative of the Initial Purchasers Named in
Schedule I to the Purchase Agreement (as defined below)
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Hasbro, Inc., a Rhode Island corporation (the "COMPANY"),
proposes to issue and sell (such issuance and sale, the "INITIAL PLACEMENT") to
the several parties named in Schedule I to the Purchase Agreement (the "INITIAL
PURCHASERS") for whom you (the "REPRESENTATIVE") are acting as representative,
upon the terms set forth in a purchase agreement dated November 27, 2001 (the
"PURCHASE AGREEMENT"), $225,000,000 aggregate principal amount (plus up to an
additional $25,000,000 aggregate principal amount to cover over-allotments, if
any) of its 2.75% Convertible Senior Debentures due 2021 (the "SECURITIES"). The
Securities will be convertible into shares of Common Stock (as defined herein),
at the conversion price set forth in the Offering Memorandum (as defined
herein), as the same may be adjusted from time to time pursuant to the Indenture
(as defined herein). As an inducement to you to enter into the Purchase
Agreement and in satisfaction of a condition to your obligations thereunder, the
Company agrees with you, (i) for your benefit and (ii) for the benefit of the
holders from time to time of the Securities and the Common Stock issuable upon
conversion of the Securities (including you), as follows:
1. DEFINITIONS. Capitalized terms used herein without
definition shall have the respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized terms shall have
the following meanings:
"ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"BROKER-DEALER" means any broker or dealer registered as such
under the Exchange Act.
"BUSINESS DAY" has the meaning set forth in the Indenture.
"CLOSING DATE" means November 30, 2001.
"COMMON STOCK" means the common stock, par value $0.50 per
share, of the Company, as it exists on the date of this Agreement and any other
shares of capital stock or other securities of the Company into which such
Common Stock may be reclassified or changed, together with any and all other
securities which may from time to time be issuable upon conversion of
Securities.
"DAMAGES PAYMENT DATE" means, with respect to the Securities
or the Common Stock issuable upon conversion thereof, as applicable, each
Interest Payment Date; and in the event that any Security, or portion thereof,
is called for redemption or surrendered for purchase by the Company and not
withdrawn pursuant to the Indenture, the relevant redemption date or purchase
date, as the case may be, shall also be a Damages Payment Date with respect to
such Security, or portion thereof, unless the Indenture provides that accrued
and unpaid interest on the Security (or portion thereof) to be redeemed or
repurchased, as the case may be, is to be paid to the person who was the record
holder on the books and records of the registrar thereof on a record date prior
to such redemption date or purchase date, as the case may be, in which case the
relevant Damages Payment Date shall be the date on which interest is payable to
such record holder.
"DEFAULT RATE" means the rate of interest payable with respect
to overdue amounts on the Securities pursuant to Section 4.01 of the Indenture.
"DTC" means The Depository Trust Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"FINAL MATURITY DATE" means December 1, 2021.
"HOLDER" means a person who is a holder or beneficial owner
(including the Initial Purchasers) of any Securities or shares of Common Stock
issued upon conversion of Securities; PROVIDED that, unless otherwise expressly
stated herein, only registered holders of Securities or Common Stock issued on
conversion thereof shall be counted for purposes of calculating any proportion
of holders entitled to take any action or give notice pursuant to this
Agreement.
"INDENTURE" means the Indenture relating to the Securities
dated as of November 30, 2001, between the Company and the Trustee, as the same
may be amended from time to time in accordance with the terms thereof.
"INITIAL PLACEMENT" has the meaning set forth in the preamble
hereto.
"INITIAL PURCHASERS" has the meaning set forth in the preamble
hereto.
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"INTEREST PAYMENT DATE" shall mean June 1 and December 1.
"LIQUIDATED DAMAGES" has the meaning set forth in Section 2(e)
hereof.
"LOSSES" has the meaning set forth in Section 5(d) hereof.
"MAJORITY HOLDERS" means the Holders of a majority of the then
outstanding aggregate principal amount of Securities registered under a Shelf
Registration Statement; PROVIDED that Holders of Common Stock issued upon
conversion of Securities shall be deemed to be Holders of the aggregate
principal amount of Securities from which such Common Stock was converted; and
PROVIDED, FURTHER, that Securities or Common Stock which have been sold or
otherwise transferred pursuant to the Shelf Registration Statement shall not be
included in the calculation of Majority Holders.
"MAJORITY UNDERWRITING HOLDERS" means, with respect to any
Underwritten Offering, the Holders of a majority of the then outstanding
aggregate principal amount of Securities registered under any Shelf Registration
Statement whose Securities are or are to be included in such Underwritten
Offering; PROVIDED that Holders of Common Stock issued upon conversion of
Securities shall be deemed to be Holders of the aggregate principal amount of
Securities from which such Common Stock was converted.
"MANAGING UNDERWRITERS" means the Underwriter or Underwriters
that shall administer an Underwritten Offering.
"NASD" has the meaning set forth in Section 3(i) hereof.
"NOTICE AND QUESTIONNAIRE" means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto.
"NOTICE HOLDER" shall mean, on any date, any Holder of
Transfer Restricted Securities that has delivered a completed and signed Notice
and Questionnaire to the Company on or prior to such date.
"OFFERING MEMORANDUM" means the Final Memorandum as defined in
the Purchase Agreement.
"PERSON" has the meaning set forth in the Indenture.
"PROSPECTUS" means the prospectus included in any Shelf
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities or Common Stock issuable upon
conversion thereof covered by such Shelf Registration Statement, and all
amendments and supplements to such
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prospectus, including all documents incorporated or deemed to be incorporated by
reference in such prospectus.
"PURCHASE AGREEMENT" has the meaning set forth in the preamble
hereto.
"REGISTRATION DEFAULT" has the meaning set forth in Section
2(e) hereof.
"REPRESENTATIVE" has the meaning set forth in the preamble
hereto.
"RULE 144" means Rule 144 (or any successor provision) under
the Act.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" has the meaning set forth in the preamble hereto.
"SHELF REGISTRATION" means a registration effected pursuant to
Section 2 hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in
Section 2(c) hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration
statement of the Company filed pursuant to the provisions of Section 2 hereof
which covers some or all of the Securities and the Common Stock issuable upon
conversion thereof, as applicable, on Form S-3 or on another appropriate form
for an offering to be made on a delayed or continuous basis pursuant to Rule 415
under the 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 or deemed to be
incorporated by reference therein.
"SUSPENSION PERIOD" has the meaning set forth in Section 2(d)
hereof.
"TRANSFER RESTRICTED SECURITIES" means each Security and each
share of Common Stock issuable or issued upon conversion thereof until the date
on which such Security or share of Common Stock, as the case may be, (i) has
been transferred pursuant to the Shelf Registration Statement or another
registration statement covering such Security or share of Common Stock which has
been filed with the SEC pursuant to the Act, in either case after such
registration statement has become effective and while such registration
statement is effective under the Act, (ii) has been transferred pursuant to Rule
144 under the Act (or any similar provision then in force) or (iii) may be sold
or transferred pursuant to Rule 144(k) under the Act (or any successor provision
then in force).
"TRUSTEE" means the trustee with respect to the Securities
under the Indenture.
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"UNDERWRITER" means any underwriter of the Securities or
Common Stock issuable upon conversion thereof in connection with an offering
thereof under a Shelf Registration Statement.
"UNDERWRITTEN OFFERING" means an offering in which the
Securities or Common Stock issued upon conversion thereof are sold to an
Underwriter or with the assistance of an Underwriter for reoffering to the
public.
All references in this Agreement to financial statements and
schedules and other information which is "contained", "included", or "stated" in
the Shelf Registration Statement, any preliminary Prospectus or Prospectus (and
all other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated or deemed to be incorporated by reference in such Shelf
Registration Statement, preliminary Prospectus or Prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to the
Shelf Registration Statement, any preliminary Prospectus or Prospectus shall be
deemed to mean and include any document filed with the SEC under the Exchange
Act, after the date of such Shelf Registration Statement, preliminary Prospectus
or Prospectus, as the case may be, which is incorporated or deemed to be
incorporated by reference therein.
2. SHELF REGISTRATION STATEMENT.
(a) The Company shall prepare and file with the SEC within 90
days following the Closing Date a Shelf Registration Statement with respect to
resales of the Transfer Restricted Securities by the Holders from time to time
in accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement and thereafter shall use commercially
reasonable efforts to cause such Shelf Registration Statement to be declared
effective under the Act within 180 days after the Closing Date; PROVIDED that if
any Securities are issued upon exercise of the over-allotment option granted to
the Initial Purchasers in the Purchase Agreement and the date on which such
Securities are issued occurs after the Closing Date, the Company will take such
steps, prior to the effective date of the Shelf Registration Statement, to
ensure that such Securities and Common Stock issuable upon conversion thereof
are included in the Shelf Registration Statement on the same terms as the
Securities issued on the Closing Date. The Company shall 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 the
Shelf Registration Statement, or by the Act, the Exchange Act or the SEC.
(b) (1) Not less than 30 calendar days prior to the
effectiveness of the Shelf Registration Statement, the Company shall mail the
Notice and Questionnaire to the Holders of Transfer Restricted Securities. The
Company shall take action to name each Holder that is a Notice Holder as of the
date that is 10 calendar days prior to the effectiveness of the Shelf
Registration Statement so that such Holder is named as a selling securityholder
in the Shelf
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Registration Statement at the time of its effectiveness and is permitted to
deliver the Prospectus forming a part thereof as of such time to purchasers of
such Holder's Transfer Restricted Securities in accordance with applicable law.
The Company shall be under no obligation to name any Holder that is not a Notice
Holder as a selling securityholder in the Shelf Registration Statement.
(2) After the Shelf Registration Statement has become
effective, the Company shall, upon the request of any Holder of Transfer
Restricted Securities, promptly send a Notice and Questionnaire to such Holder.
From and after the date on which the Shelf Registration Statement has become
effective, the Company shall (i) (x) as promptly as is practicable after the
date a completed and signed Notice and Questionnaire is delivered to the
Company, and in any event within five Business Days after such date, prepare and
file with the SEC a supplement to the Prospectus and any other document required
by applicable law, or (y) if the company is required by applicable law to file a
post-effective amendment to the Shelf Registration Statement, shall prepare and
file such post-effective amendment and any other document required by applicable
law no later than the first day of the next calendar quarter that begins on or
after ten Business Days from the date a completed and signed Notice and
Questionnaire is delivered to the Company, in each case so that the Holder
delivering such Notice and Questionnaire is named as a selling securityholder in
the Shelf Registration Statement and is permitted to deliver the Prospectus to
purchasers of such Holder's Transfer Restricted Securities in accordance with
applicable law, and (ii) if the Company shall file a post-effective amendment to
the Shelf Registration Statement, use commercially reasonable efforts to cause
such post-effective amendment to become effective under the Act as promptly as
is practicable; PROVIDED, HOWEVER, that if a Notice and Questionnaire is
delivered to the Company during a Suspension Period, the Company shall not be
obligated to take the actions set forth in clauses (i) and (ii) until the
termination of such Suspension Period.
(c) The Company shall use commercially reasonable efforts to
keep the Shelf Registration Statement continuously effective under the Act in
order to permit the Prospectus forming a part thereof to be usable, subject to
Section 2(d), by all Notice Holders until the earliest of (i) the second
anniversary of the Closing Date or, if later, the second anniversary of the last
date on which any Securities are issued upon exercise of the Initial Purchasers'
over-allotment option, (ii) the date on which all the Securities and Common
Stock issued or issuable upon conversion thereof may be sold by non-affiliates
("affiliates" for such purpose having the meaning set forth in Rule 144) of the
Company pursuant to paragraph (k) of Rule 144 (or any successor provision)
promulgated by the SEC under the Act and (iii) such date as of which all the
Securities and the Common Stock issued or issuable upon conversion thereof have
been sold pursuant to the Shelf Registration Statement (in any such case, such
period being called the "SHELF REGISTRATION PERIOD"). The Company will, (x)
subject to Section 2(d), prepare and file with the SEC such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep the Shelf Registration Statement continuously effective for
the Shelf Registration Period, (y) subject to Section 2(d), cause the related
Prospectus to be
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supplemented by any required supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the Act and
(z) comply in all material respects with the provisions of the Act with respect
to the disposition of all securities covered by the Shelf Registration Statement
during the applicable period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Shelf Registration
Statement as so amended or such Prospectus as so supplemented.
(d) The Company may suspend the use of the Prospectus for a
period not to exceed 45 days in any three-month period or for two periods not to
exceed an aggregate of 90 days in any 12-month period (the "SUSPENSION PERIOD")
for valid business reasons, to be determined by the Company in good faith (not
including avoidance of the Company's obligations hereunder), including, without
limitation, the acquisition or divestiture of assets, public filings with the
SEC, pending corporate developments and similar events; PROVIDED that the
Company promptly thereafter complies with the requirements of Section 3(j)
hereof, if applicable; PROVIDED, FURTHER, that the existence of a Suspension
Period will not prevent the occurrence of a Registration Default or otherwise
limit the obligation of the Company to pay Liquidated Damages.
(e) If (i) the Shelf Registration Statement is not filed with
the SEC on or prior to 90 days after the Closing Date, (ii) the Shelf
Registration Statement has not been declared effective by the SEC within 180
days after the Closing Date, or (iii) the Shelf Registration Statement is filed
and declared effective but shall thereafter cease to be effective (without being
succeeded immediately by a replacement shelf registration statement filed and
declared effective) or usable (including as a result of a Suspension Period) for
the offer and sale of Transfer Restricted Securities for a period of time
(including any Suspension Period) which shall exceed 90 days in the aggregate in
any 12-month period during the period beginning on the Closing Date and ending
on the second anniversary of the Closing Date or, if later, the second
anniversary of the last date on which any Securities are issued upon exercise of
the Initial Purchasers' over-allotment option (each such event referred to in
clauses (i) through (iii), a "REGISTRATION DEFAULT"), the Company will pay
liquidated damages ("LIQUIDATED DAMAGES") to each Holder of Transfer Restricted
Securities who has complied with such Holder's obligations under this Agreement.
The amount of Liquidated Damages payable during any period in which a
Registration Default has occurred and is continuing is the amount which is equal
to one-quarter of one percent (25 basis points) per annum per $1,000 principal
amount of Securities and $2.50 per annum per 46.2963 shares of Common Stock
(subject to adjustment in the event of a stock split, stock recombination, stock
dividend and the like) constituting Transfer Restricted Securities for the first
90 days during which a Registration Default has occurred and is continuing and
one-half of one percent (50 basis points) per annum per $1,000 principal amount
of Securities and $5.00 per annum per 46.2963 shares of Common Stock (subject to
adjustment as set forth above) constituting Transfer Restricted Securities for
any additional days during which a Registration Default has occurred and is
continuing (in each case subject to further adjustment from time to time in the
event of a stock split, stock recombination, stock dividend
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and the like), it being understood that all calculations pursuant to this and
the preceding sentence shall be carried out to five decimals. Following the cure
of all Registration Defaults, Liquidated Damages will cease to accrue with
respect to such Registration Default. Liquidated Damages shall cease to accrue
in respect of any Transfer Restricted Security when it shall cease to be such.
All accrued Liquidated Damages shall be paid on each Damages Payment Date in the
manner provided for the payment of interest in the Indenture, and Liquidated
Damages will be calculated on the basis of a 360-day year consisting of twelve
30-day months. In the event that any Liquidated Damages are not paid when due,
then to the extent permitted by law, such overdue Liquidated Damages, if any,
shall bear interest until paid at the Default Rate, compounded semi-annually.
The parties hereto agree that the Liquidated Damages provided for in this
Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Holders by reason of a Registration Default.
(f) All of the Company's obligations (including, without
limitation, the obligation to pay Liquidated Damages) set forth in the preceding
paragraph which are outstanding or exist with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such
security shall have been satisfied in full.
(g) Immediately upon the occurrence or the termination of a
Registration Default, the Company shall give the Trustee, in the case of notice
with respect to the Securities, and the transfer and paying agent for the Common
Stock, in the case of notice with respect to Common Stock issued or issuable
upon conversion thereof, notice of such commencement or termination, of the
obligation to pay Liquidated Damages with regard to the Securities and Common
Stock and the amount thereof and of the event giving rise to such commencement
or termination (such notice to be contained in an Officers' Certificate (as such
term is defined in the Indenture)), and prior to receipt of such Officers'
Certificate the Trustee and such transfer and paying agent shall be entitled to
assume that no such commencement or termination has occurred, as the case may
be.
(h) All Securities which are redeemed, purchased or otherwise
acquired by the Company or any of its subsidiaries or affiliates (as defined in
Rule 144 (or any successor provision) under the Act) prior to the Final Maturity
Date shall be delivered to the Trustee for cancellation and the Company may not
hold or resell such Securities or issue any new Securities to replace any such
Securities or any Securities that any Holder has converted pursuant to the
Indenture. All shares of Common Stock issued upon conversion of the Securities
which are repurchased or otherwise acquired by the Company or any of its
subsidiaries or affiliates (as defined in Rule 144 (or any successor provision)
under the Act) at any time while such shares are "restricted securities" within
the meaning of Rule 144 shall not be resold or otherwise transferred except
pursuant to a registration statement which has been declared effective under the
Act.
3. REGISTRATION PROCEDURES. In connection with any Shelf
Registration Statement, the following provisions shall apply:
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(a) The Company shall (i) furnish to the Representative, prior
to the filing thereof with the SEC, a copy of any Shelf Registration Statement,
and each amendment thereof, and a copy of any Prospectus, and each amendment or
supplement thereto (excluding amendments caused by the filing of a report under
the Exchange Act), and shall use commercially reasonable efforts to reflect in
each such document, when so filed with the SEC, such comments as the
Representative reasonably may promptly propose; and (ii) include information
regarding the Notice Holders and the methods of distribution they have elected
for their Transfer Restricted Securities provided to the Company in Notice and
Questionnaires as necessary to permit such distribution by the methods specified
therein.
(b) Subject to Section 2(d), the Company shall ensure that (i)
any Shelf Registration Statement and any amendment thereto and any Prospectus
forming a part thereof and any amendment or supplement thereto comply in all
material respects with the Act and the rules and regulations thereunder, (ii)
any Shelf Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any Prospectus forming a part of any
Shelf Registration Statement, and any amendment or supplement to such
Prospectus, does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading; PROVIDED
that the Company makes no representation with respect to information with
respect to any Underwriter or any Holder required to be included in any Shelf
Registration Statement or Prospectus pursuant to the Act or the rules and
regulations thereunder and which information is included therein in reliance
upon and in conformity with information furnished to the Company in writing by
such Underwriter or Holder.
(c) The Company, as promptly as practicable, shall advise the
Representative and each Notice Holder and, if requested by you or any such
Holder, confirm such advice in writing:
(i) when a Shelf Registration Statement and any
amendment thereto has been filed with the SEC and when the
Shelf Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of any request by the SEC following
effectiveness of the Shelf Registration Statement for
amendments or supplements to the Shelf Registration Statement
or the Prospectus or for additional information (other than
any such request relating to a review of the Company's
Exchange Act filings);
(iii) of the determination by the Company that a
post-effective amendment to the Shelf Registration Statement
would be appropriate;
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(iv) of the commencement or termination of (but not
the nature of or details concerning) any Suspension Period;
(v) of the issuance by the SEC of any stop order
suspending the effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for that
purpose;
(vi) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Transfer Restricted Securities included
in any Shelf Registration Statement for sale in any
jurisdiction or the initiation or threat of any proceeding for
such purpose;
(vii) of the happening of (but not the nature of or
details concerning) any event that requires the making of any
changes in the Shelf Registration Statement or the Prospectus
so that, as of such date, the statements therein are not
misleading and the Shelf Registration Statement or the
Prospectus, as the case may be, does not include 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 the case of the Prospectus, in light of
the circumstances under which they were made) not misleading;
and
(viii) of the Company's suspension of the use of the
Prospectus as a result of any of the events or circumstances
described in paragraphs (ii) through (vii) above, and of the
termination of any such suspension.
(d) The Company shall use commercially reasonable efforts to
obtain the withdrawal of any order suspending the effectiveness of any Shelf
Registration Statement or the lifting of any suspension of the qualification (or
exemption from qualification) of any of the Transfer Restricted Securities for
offer or sale in any jurisdiction at the earliest possible time.
(e) The Company shall promptly furnish to each Notice Holder
upon request, without charge, at least one copy of any Shelf Registration
Statement and any post-effective amendment thereto, including all exhibits
(including those incorporated by reference), financial statements and schedules.
(f) The Company shall, during the Shelf Registration Period,
promptly deliver to each Initial Purchaser, each Notice Holder and any sales or
placement agent or underwriters acting on their behalf, without charge, as many
copies of the Prospectus (including each preliminary Prospectus) included in any
Shelf Registration Statement (excluding documents incorporated by reference),
and any amendment or supplement thereto, as such person may reasonably request;
and, except as provided in Sections 2(d) and 3(s) hereof, the Company consents
to the use of the Prospectus or any amendment or supplement thereto by each of
the selling Holders in connection with the offering and sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or supplement
thereto.
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(g) Prior to any offering of Transfer Restricted Securities
pursuant to any Shelf Registration Statement, the Company shall register or
qualify or cooperate with the Notice Holders and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Transfer Restricted Securities for offer
and sale, under the securities or blue sky laws of such jurisdictions within the
United States as any such Notice Holders reasonably request and shall maintain
such qualification in effect so long as required and do any and all other acts
or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Transfer Restricted Securities covered by such Shelf
Registration Statement; PROVIDED, HOWEVER, that the Company will not be required
to (A) qualify generally to do business as a foreign corporation or as a dealer
in securities in any jurisdiction where it is not then so qualified or to (B)
take any action which would subject it to service of process or taxation in any
such jurisdiction where it is not then so subject.
(h) The Company shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing Transfer
Restricted Securities sold pursuant to any Shelf Registration Statement free of
any restrictive legends and in such denominations permitted by the Indenture and
registered in such names as Holders may request prior to settlement of sales of
Transfer Restricted Securities pursuant to such Shelf Registration Statement.
(i) Subject to the exceptions contained in (A) and (B) of
Section 3(g) hereof, the Company shall use commercially reasonable efforts to
cause the Transfer Restricted Securities covered by the applicable Shelf
Registration Statement to be registered with or approved by such other federal,
state and local governmental agencies or authorities, and self-regulatory
organizations in the United States as may be necessary to enable the Holders to
consummate the disposition of such Transfer Restricted Securities as
contemplated by the Shelf Registration Statement; without limitation to the
foregoing, the Company shall provide all such information as may be required by
the National Association of Securities Dealers, Inc. (the "NASD") in connection
with the offering under the Shelf Registration Statement of the Transfer
Restricted Securities (including, without limitation, such as may be required by
NASD Rule 2710 or 2720), and shall cooperate with each Holder in connection with
any filings required to be made with the NASD by such Holder in that regard.
(j) Upon the occurrence of any event described in Section
3(c)(vii) hereof, the Company shall promptly prepare and file with the SEC a
post-effective amendment to any Shelf Registration Statement or an amendment or
supplement to the related Prospectus or any document incorporated therein by
reference or file a document which is incorporated or deemed to be incorporated
by reference in such Shelf Registration Statement or Prospectus, as the case may
be, so that, as thereafter delivered to purchasers of the Transfer Restricted
Securities included therein, the Shelf Registration Statement and the
Prospectus, in each case as then amended or supplemented, will not include an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements
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therein (in the case of the Prospectus in light of the circumstances under which
they were made) not misleading and, in the case of a post-effective amendment,
use its best efforts to cause it to become effective as promptly as practicable;
PROVIDED that the Company's obligations under this paragraph (j) shall be
suspended if the Company has suspended the use of the Prospectus in accordance
with Section 2(d) hereof and given notice of such suspension to Notice Holders,
it being understood that the Company's obligations under this Section 3(j) shall
be automatically reinstated at the end of such Suspension Period.
(k) The Company shall use commercially reasonable efforts to
provide, on or prior to the first Business Day following the effective date of
any Shelf Registration Statement hereunder (i) a CUSIP number for the Transfer
Restricted Securities registered under such Shelf Registration Statement and
(ii) global certificates for such Transfer Restricted Securities to the Trustee,
in a form eligible for deposit with DTC.
(l) The Company shall use commercially reasonable efforts to
comply with all applicable rules and regulations of the SEC and shall make
generally available to its security holders as soon as practicable but in any
event not later than 50 days after the end of a 12-month period (or 105 days, if
such period is a fiscal year) after (i) the effective date of the applicable
Shelf Registration Statement, (ii) the effective date of each post-effective
amendment to any Shelf Registration Statement, and (iii) the date of each filing
by the Company with the SEC of an Annual Report on Form 10-K that is
incorporated by reference or deemed to be incorporated by reference in the Shelf
Registration Statement, an earnings statement satisfying the provisions of
Section 11(a) of the Act and Rule 158 promulgated by the SEC thereunder.
(m) The Company shall use commercially reasonable efforts to
cause the Indenture to be qualified under the TIA (as defined in the Indenture)
in a timely manner.
(n) The Company shall cause all Common Stock issued or
issuable upon conversion of the Securities to be listed on each securities
exchange or quotation system on which the Common Stock is then listed no later
than the date the applicable Shelf Registration Statement is declared effective
and, in connection therewith, to make such filings as may be required under the
Exchange Act and to have such filings declared effective as and when required
thereunder.
(o) The Company may require each Holder of Transfer Restricted
Securities to be sold pursuant to any Shelf Registration Statement to furnish to
the Company such information regarding the Holder and the distribution of such
Transfer Restricted Securities sought by the Notice and Questionnaire and such
additional information as may, from time to time, be required by the Act and the
rules and regulations promulgated thereunder, and the obligations of the Company
to any Holder hereunder shall be expressly conditioned on the compliance of such
Holder with such request.
12
(p) The Company shall, if reasonably requested, use
commercially reasonable efforts to promptly incorporate in a Prospectus
supplement or post-effective amendment to a Shelf Registration Statement (i)
such information as the Majority Holders provide or, if Transfer Restricted
Securities are being sold in an Underwritten Offering, as the Managing
Underwriters or the Majority Underwriting Holders reasonably agree should be
included therein and provide to the Company in writing for inclusion in the
Shelf Registration Statement or Prospectus, and (ii) such information as a
Holder may provide from time to time to the Company in writing for inclusion in
a Prospectus or any Shelf Registration Statement concerning such Holder and the
distribution of such Holder's Transfer Restricted Securities and, in either
case, shall make all required filings of such Prospectus supplement or
post-effective amendment promptly after being notified in writing of the matters
to be incorporated in such Prospectus supplement or post-effective amendment,
PROVIDED that the Company shall not be required to take any action under this
Section 3(p) that is not, in the reasonable opinion of counsel for the Company,
in compliance with applicable law and shall not be required to file a
post-effective amendment more than once per quarter.
(q) The Company shall enter into such customary agreements
(including underwriting agreements) and take all other appropriate actions as
may be reasonably requested in order to expedite or facilitate the registration
or the disposition of the Transfer Restricted Securities, and in connection
therewith, if an underwriting agreement is entered into, cause the same to
contain indemnification and contribution provisions and procedures no less
favorable than those set forth in Section 5. The plan of distribution in the
Shelf Registration Statement and the Prospectus included therein shall permit
resales of Transfer Restricted Securities to be made by selling securityholders
through underwriters, brokers and dealers, and shall also include such other
information as the Representative may reasonably request.
(r) The Company shall if reasonably requested in writing by
Majority Holders, by Majority Underwriting Holders or by the Managing
Underwriter:
(i) subject to confidentiality procedures and
agreements in form and substance reasonably acceptable to the
Company, make available for inspection during normal business
hours by any Underwriter participating in any disposition
pursuant to such Shelf Registration Statement, and any
attorney, accountant or other agent retained by any such
Underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company
and its subsidiaries as is customary for due diligence
examinations in connection with public offerings; PROVIDED
that any such due diligence examination shall be coordinated
on behalf of the Notice Holders and the other parties entitled
thereto by one counsel designated by and on behalf of such
Notice Holders and other parties that is reasonably acceptable
to the Company;
(ii) cause the Company's officers, directors,
employees, accountants and auditors to supply all relevant
information requested by any such Underwriter, attorney,
accountant or agent in connection with any such Shelf
Registration Statement as is
13
customary for similar due diligence examinations; 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 the
Holders or any such Underwriter, attorney, accountant or
agent, unless disclosure thereof is made in connection with a
court, administrative or regulatory proceeding or required by
law, or such information has become available to the public
generally through the Company or through a third party without
an accompanying obligation of confidentiality;
(iii) deliver a letter, addressed to the selling
Holders and the Underwriters, if any, in which the Company
shall make such representations and warranties in form,
substance and scope as are customarily made by issuers to
Underwriters;
(iv) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions, in form, scope
and substance, shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling
Holder and the Underwriters, if any, covering such matters as
are customarily covered in opinions requested in public
offerings;
(v) obtain "cold comfort" letters and updates thereof
from the current and former independent certified public
accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of
the Company or of any business acquired by the Company for
which financial statements and financial data are, or are
required to be, included in the Shelf Registration Statement),
addressed to each selling Holder (PROVIDED that such Holder
furnishes the accountants, prior to the date such "cold
comfort" letter is required to be delivered, with such
representations as the accountants customarily require in
similar situations) and the Underwriters, if any, in customary
form and covering matters of the type customarily covered in
"cold comfort" letters in connection with primary underwritten
offerings; and
(vi) deliver such documents and certificates as may
be requested by the Majority Holders or, in the case of an
Underwritten Offering, the Majority Underwriting Holders, and
the Managing Underwriters, if any, including those to evidence
compliance with Section 3(j) and with any customary conditions
contained in the underwriting agreement or other agreement
entered into by the Company.
The foregoing actions set forth in clauses (iii), (iv), (v)
and (vi) of this Section 3(r) shall be performed at (A) the effectiveness of
such Shelf Registration Statement and each post-effective amendment thereto and
(B) each closing under any underwriting or similar agreement as and to the
extent required thereunder.
(s) Each Notice Holder agrees that, upon receipt of notice of
the happening of an event described in Sections 3(c)(ii) through and including
3(c)(viii), each Holder shall forthwith discontinue (and shall cause its agents
and representatives to discontinue) disposition
14
of Transfer Restricted Securities and will not resume disposition of Transfer
Restricted Securities until such Holder has received copies of an amended or
supplemented Prospectus contemplated by Section 3(j) hereof, or until such
Holder is advised in writing by the Company that the use of the Prospectus may
be resumed or that the relevant Suspension Period has been terminated, as the
case may be, PROVIDED that the foregoing shall not prevent the sale, transfer or
other disposition of Transfer Restricted Securities by a Notice Holder in a
transaction which is exempt from, or not subject to, the registration
requirements of the Act, so long as such Notice Holder does not and is not
required to deliver the applicable Prospectus or Shelf Registration Statement in
connection with such sale, transfer or other disposition, as the case may be;
and PROVIDED, FURTHER, that the provisions of this Section 3(s) shall not
prevent the occurrence of a Registration Default or otherwise limit the
obligation of the Company to pay Liquidated Damages.
(t) The Company shall in connection with an Underwritten
Offering use commercially reasonable efforts (i) if the Securities have been
rated prior to the initial sale of such Securities, to confirm that such ratings
will apply to the Securities covered by the Shelf Registration Statement; or
(ii) if the Securities were not previously rated, to cause the Securities
covered by the Shelf Registration Statement to be rated with at least one
nationally recognized statistical rating agency, if so requested by the Majority
Holders or by any Managing Underwriters.
4. REGISTRATION EXPENSES. The Company shall bear all fees and expenses incurred
in connection with the performance of its obligations under Sections 2 and 3
hereof and the reasonable fees and expenses of a single counsel to the Initial
Purchasers in connection with the initial filing of the Shelf Registration
Statement. In addition, in the event of an Underwritten Offering or if in any
other event the Company requires that inspection and information gathering be
coordinated by counsel for the selling Holders as provided in Section 3(r)(i)
hereof, the Company shall pay the reasonable fees and expenses of a single
counsel selected by the selling Holders of not less than 25% of the Transfer
Restricted Securities to be included in such Underwritten Offering to represent
them. The selling Holders participating in such offering (or, in any such other
event, participating in such inspection and information gathering) shall be
responsible on a pro rata basis based on the respective amount of their Transfer
Restricted Securities included in such offering, for all fees and expenses of
such counsel in excess of $50,000. Notwithstanding the provisions of this
Section 4, each Holder shall bear the expense of any broker's commission, agency
fee or underwriter's discount or commission.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Holder of Transfer Restricted Securities covered by any Shelf Registration
Statement (including each of the Initial Purchasers), the directors, officers,
employees and agents of each such Holder and each person who controls any such
Holder within the meaning of either the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of
15
them may become subject under the Act, the Exchange Act or other federal or
state law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Shelf Registration Statement as originally filed or in any
amendment thereof, or in any preliminary Prospectus or Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by any of them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon (A) any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Holder or any Initial Purchaser
specifically for inclusion therein, (B) use of a Shelf Registration Statement or
the related Prospectus during a period when use of such Prospectus has been
suspended pursuant to Section 2(d) or Section 3(s) hereof; PROVIDED, FURTHER, in
each case, that Holders received prior notice of such suspension, or (C) if the
Holder fails to deliver a Prospectus, as then amended or supplemented, PROVIDED
that the Company shall have delivered to such Holder such Prospectus, as then
amended or supplemented. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Holder of Transfer Restricted Securities covered by a
Shelf Registration Statement (including the Initial Purchasers) severally and
not jointly agrees to indemnify and hold harmless (i) the Company, (ii) each of
its directors, (iii) each of its officers and employees and (iv) each person who
controls the Company within the meaning of either the Act or the Exchange Act to
the same extent as the foregoing indemnity from the Company to each such Holder,
but only with reference to written information furnished to the Company by or on
behalf of such Holder specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement shall be in addition to any
liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 5, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party will
not relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses. The
indemnifying party shall be entitled to assume the defense of such action and
appoint counsel of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be
16
responsible for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); PROVIDED, HOWEVER, that
such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party and that
representation of the indemnified party by counsel chosen by the indemnifying
party would be inappropriate due to actual or potential differing interests
among the parties represented by such counsel; (iii) the indemnifying party
shall not have assumed the defense of such action and employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action; or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. Neither an indemnifying party
nor an indemnified party will, without the prior written consent of the other
parties, settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not such other parties are actual or potential parties to such claim
or action) unless such settlement, compromise or consent includes an
unconditional release of such other parties from all liability arising out of
such claim, action, suit or proceeding. An indemnifying party shall not be
liable for any losses, claims, damages or liabilities by reason of any
settlement of any action or proceeding effected without such indemnifying
party's prior written consent, which consent will not be unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 5 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have an obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "LOSSES"), as incurred, to
which such indemnified party may be subject in such proportion as is appropriate
to reflect the relative benefits received by such indemnifying party, on the one
hand, and such indemnified party, on the other hand, from the Initial Placement
and any sales of Transfer Restricted Securities under the Shelf Registration
Statement; PROVIDED, HOWEVER, that in no case shall the Initial Purchasers be
responsible, in the aggregate, for any amount in excess of the purchase discount
or commission applicable to the Securities, as set forth in the Purchase
Agreement. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the indemnifying party and the indemnified party
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on the
one hand,
17
and such indemnified party, on the other hand, in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed to be
equal to the total net proceeds from the Initial Placement (before deducting
expenses). Benefits received by the Initial Purchasers shall be deemed to be
equal to the total purchase discounts and commissions received in connection
with the Initial Placement, and benefits received by any other Holders shall be
deemed to be equal to the value of receiving Transfer Restricted Securities
registered under the Act. Benefits received by any Underwriter shall be deemed
to be equal to the total underwriting discounts and commissions, as set forth on
the cover page of the Prospectus forming a part of the Shelf Registration
Statement which resulted in such Losses. Relative fault shall be determined by
reference to whether any untrue statement or omission or alleged untrue
statement or omission relates to information provided by the indemnifying party,
on the one hand, or by the indemnified party, on the other hand, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The parties agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 5(d), 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. For purposes of
this Section 5, each person who controls a Holder within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who signed the Shelf Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, and each person who controls an Underwriter within
the meaning of either the Act or the Exchange Act and each officer and director
of each Underwriter shall have the same rights to contribution as such
Underwriter, subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) The provisions of this Section 5 will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder,
any Underwriter or the Company or any of the officers, directors or controlling
persons referred to in Section 5 hereof, and will survive the sale by a Holder
of Transfer Restricted Securities covered by a Shelf Registration Statement.
6. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company shall not, on or
after the date hereof, enter into, any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and
18
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of the Majority Holders;
provided that with respect to any matter that directly or indirectly affects the
rights of the Initial Purchasers hereunder, the Company shall obtain the written
consent of each of the Initial Purchasers against which such amendment,
qualification, supplement, waiver or consent is to be effective. Notwithstanding
the foregoing (except the foregoing proviso), a waiver or consent to departure
from the provisions hereof with respect to a matter that relates exclusively to
the rights of Holders whose Transfer Restricted Securities are being sold
pursuant to a Shelf Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by the Majority
Holders, determined on the basis of the Transfer Restricted Securities being
sold rather than registered under such Shelf Registration Statement.
(c) NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telecopier, or overnight courier guaranteeing overnight delivery:
(1) if to the Representative, initially at its address set
forth in the Purchase Agreement;
(2) if to any other Holder, at the most current address of
such Holder maintained by the Registrar under the Indenture or the registrar of
the Common Stock (PROVIDED that while the Securities or the Common Stock are in
book-entry form, notice to the Trustee shall serve as notice to the Holders),
or, in the case of the Notice Holder, the address set forth in its Notice and
Questionnaire; and
(3) if to the Company, initially at its address set forth in
the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received, if delivered by hand or overnight courier, and
when sent, if sent by first-class mail or telecopier.
The Initial Purchasers or the Company by notice to the other
may designate additional or different addresses for subsequent notices or
communications.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company thereto, subsequent Holders. The Company hereby agrees to extend the
benefits of this Agreement to any Holder and Underwriter and any such Holder and
Underwriter may specifically enforce the provisions of this Agreement as if an
original party hereto. In the event that any other person shall succeed to the
Company under the Indenture, then such successor shall enter into an agreement,
in form and substance
19
reasonably satisfactory to the Representative, whereby such successor shall
assume all of the Company's obligations under this Agreement.
(e) COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
(h) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) SECURITIES HELD BY THE COMPANY, ETC. Whenever the consent
or approval of Holders of a specified percentage of principal amount of
Securities or the Common Stock issuable upon conversion thereof is required
hereunder, Securities or the Common Stock issued upon conversion thereof held by
the Company or its affiliates (as defined in Rule 144 (or any successor
provision) under the Act) (other than subsequent Holders of Securities or the
Common Stock issued upon conversion thereof if such subsequent Holders are
deemed to be affiliates solely by reason of their holdings of such Securities or
Common Stock) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(j) TERMINATION. This Agreement and the obligations of the
parties hereunder shall terminate upon the end of the Shelf Registration Period,
except for any liabilities or obligations under Section 2(e), 4 or 5 to the
extent arising prior to the end of the Shelf Registration Period.
20
Please confirm that the foregoing correctly sets forth the
agreement between the Company and you.
Very truly yours,
HASBRO, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
and Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
XXXXXXX XXXXX XXXXXX INC.
By: /s/ Xxxxxxx X. Xxx
-----------------------------------------
Name: Xxxxxxx X. Xxx
Title: Managing Director
For itself and the other Initial
Purchasers named in Schedule I to the
Purchase Agreement.
21
EXHIBIT A
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial holder (the "Selling Securityholder") of
2.75% Convertible Senior Debentures due 2021 (the "Notes") of Hasbro, Inc. (the
"Company") or shares of Company common stock issuable upon conversion of the
Notes (together with the Notes, the "Transfer Restricted Securities") of the
Company understands that the Company has filed or intends to file with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (the "Shelf Registration Statement") for the registration and resale
under Rule 415 of the Securities Act of 1933, as amended (the "Securities Act"),
of the Transfer Restricted Securities in accordance with the terms of the
Registration Agreement (the "Registration Agreement") dated as of November 30,
2001 between the Company and the Initial Purchasers named therein. The
Registration Agreement is available from the Company upon request at the address
set forth below. All capitalized terms not otherwise defined herein shall have
the meaning ascribed thereto in the Registration Agreement.
In order to sell or otherwise dispose of any Transfer Restricted
Securities pursuant to the Shelf Registration Statement, a beneficial owner of
Transfer Restricted Securities generally will be required to be named as a
selling securityholder in the related prospectus, deliver a prospectus to
purchasers of Transfer Restricted Securities and be bound by those provisions of
the Registration Agreement applicable to such beneficial owner (including
certain indemnification provisions as described below). Beneficial owners are
encouraged to complete and deliver this Notice and Questionnaire prior to the
effectiveness of the Shelf Registration Statement so that such beneficial owners
may be named as selling securityholders in the related prospectus at the time of
effectiveness.
Certain legal consequences arise from being named as selling
securityholders in the Shelf Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Transfer Restricted Securities are
advised to consult their own securities law counsel regarding the consequences
of being named or not being named as a selling securityholder in the Shelf
Registration Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Transfer Restricted Securities hereby gives notice to the Company of its
intention to sell or otherwise dispose of Transfer Restricted Securities
beneficially owned by it and listed below in Item (3) (unless otherwise
specified under Item (3)) pursuant to the Shelf Registration Statement. The
undersigned, by signing and returning this Notice and Questionnaire, understands
that it will be bound by the terms and conditions of this Notice and
Questionnaire and the Registration Agreement.
A-1
The undersigned hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
1. (a) Full legal name of Selling Securityholder:
--------------------------------------------------------------
(b) Full legal name of registered holder (if not the same as (a)
above) through which Transfer Restricted Securities listed in
Item (3) below are held (if the Transfer Restricted Securities
are held through a broker-dealer or other third party and, as
a result, you do not know the legal name of the registered
holder, please complete Item (1)(c) below):
--------------------------------------------------------------
(c) Full legal name of broker-dealer or other third party through
which Transfer Restricted Securities listed in Item (3) below
are held:
--------------------------------------------------------------
(d) Full legal name of DTC Participant (if applicable and if not
the same as (b) or (c) above) through which Transfer
Restricted Securities listed in Item (3) below are held:
--------------------------------------------------------------
2. Address for Notices to Selling Securityholder:
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Telephone:
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Fax:
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Contact Person:
--------------------------------------------------------
A-2
3. Beneficial Ownership of Transfer Restricted Securities:
(a) Type and principal amount (or number of shares) of Transfer
Restricted Securities beneficially owned:
--------------------------------------------------------------
--------------------------------------------------------------
(b) CUSIP No(s). of such Transfer Restricted Securities
beneficially owned:
--------------------------------------------------------------
--------------------------------------------------------------
Unless otherwise indicated in the space provided below, all
Notes and all shares of common stock listed in response to
Item (3)(a) above, and all shares of common stock issuable
upon conversion of the Notes listed in response to Item (3)(a)
above, will be included in the Shelf Registration Statement.
If the undersigned does not wish all such Notes or shares of
common stock to be so included, please indicate below the
principal amount or the number of shares to be included:
--------------------------------------------------------------
--------------------------------------------------------------
4. Beneficial ownership of other securities of the Company owned by the
Selling Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any securities of the Company other
than the Transfer Restricted Securities listed above in Item (3).
(a) Type and amount of other securities of the Company
beneficially owned by the Selling Securityholder:
--------------------------------------------------------------
--------------------------------------------------------------
(b) CUSIP No(s). of such other securities of the company
beneficially owned:
A-3
--------------------------------------------------------------
--------------------------------------------------------------
5. Relationship with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, directors or principal equity holders (5% or more) has held
any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three
years.
State any exceptions here:
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6. Plan of Distribution
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Transfer Restricted Securities
listed above in Item (3) pursuant to the Shelf Registration Statement
only as follows (if at all): Such Transfer Restricted Securities may be
sold from time to time directly by the undersigned or alternatively
through underwriters or broker-dealers or agents. If the Transfer
Restricted Securities are sold through underwriters or broker-dealers,
the Selling Securityholder will be responsible for underwriting
discounts or commissions or agent's commissions. Such Transfer
Restricted Securities may be sold in one or more transactions at fixed
prices, at prevailing market prices at the time of sale, at varying
prices determined at the time of sale, or at negotiated prices. Such
sales may be effected in transactions (which may involve block
transactions) (i) on any national securities exchange or quotation
service on which the Transfer Restricted Securities may be listed or
quoted at the time of sale, (ii) in the over-the-counter market, (iii)
in transactions otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options. In
connection with sales of the Transfer Restricted Securities or
otherwise, the undersigned may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the Transfer
Restricted Securities, short and deliver Transfer Restricted Securities
to close out such short positions, or loan or pledge Transfer
Restricted Securities to broker-dealers that in turn may sell such
securities. The Selling Securityholder may pledge or grant security
interest in some or all of the Transfer Restricted Securities owned by
it and, if it defaults in the performance of its secured obligations,
the pledgees or secured parties may offer and sell the Transfer
Restricted Securities from time to time pursuant to the prospectus. The
Selling Securityholder also may transfer
A-4
and donate shares in other circumstances in which case the transferees,
donees, pledgees or other successors in interest will be the selling
securityholder for purposes of the prospectus.
State any exceptions here:
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Note: The Company's obligation to cooperate in an underwritten
offering of the Transfer Restricted Securities is limited
under Section 3(r) of the Registration Agreement.
The undersigned acknowledges that it understands its obligation to
comply with the provisions of the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder relating to stock manipulation,
particularly Regulation M thereunder (or any successor rules or regulations) and
the provisions of the Securities Act of 1933 relating to prospectus delivery, in
connection with any offering of Transfer Restricted Securities pursuant to the
Shelf Registration Statement. The undersigned agrees that neither it nor any
person acting on its behalf will engage in any transaction in violation of such
provisions.
The Selling Securityholder hereby acknowledges its obligations under
the Registration Agreement to indemnify and hold harmless certain persons set
forth therein.
Pursuant to the Registration Agreement, the Company has agreed under
certain circumstances to indemnify the Selling Securityholders against certain
liabilities.
In accordance with the undersigned's obligation under the Registration
Agreement to provide such information as may be required by law for inclusion in
the Shelf Registration Statement, the undersigned agrees to promptly notify the
Company of any inaccuracies or changes in the information provided herein that
may occur subsequent to the date hereof at any time while the Shelf Registration
Statement is required to remain effective. All notices hereunder and pursuant to
the Registration Agreement shall be made in writing at the address set forth
below.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and the
related prospectus. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation or amendment of
the Shelf Registration Statement and the related prospectus.
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IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Beneficial Owner
By:
-----------------------------------------
Name:
Title:
Dated:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE
TO THE COMPANY:
HASBRO, INC.
0000 XXXXXXX XXXXXX
XXXXXXXXX, XX 00000
FACSIMILE: (000) 000-0000
ATTENTION: GENERAL COUNSEL
WITH A COPY TO:
ROPES & XXXX
XXX XXXXXXXXXXXXX XXXXX
XXXXXX, XX 00000-0000
FACSIMILE: (000) 000-0000
ATTENTION: XXXXX X. XXXXX
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