Exhibit 4.6
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of May 15, 2001, by and among THE DOW CHEMICAL COMPANY, a Delaware
corporation (the "Company"), and XXXXXXX XXXXX XXXXXX INC., BANC OF AMERICA
SECURITIES LLC, BEAR, XXXXXXX & CO. INC., BANC ONE CAPITAL MARKETS, INC., RBC
DOMINION SECURITIES CORPORATION AND THE XXXXXXXX CAPITAL GROUP, L.P., in their
respective capacities as initial purchasers and as representatives of each of
the other initial purchasers named in Schedule I to the Purchase Agreement
referred to below (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated May 8,
2001, by and among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of $1,000,000,000 aggregate principal amount of the its 5 1/4% Notes
due 2004 (the "Securities").
In order to induce the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the Initial Purchasers'
obligations thereunder, the Company has agreed to provide to the Initial
Purchasers and their respective direct and indirect transferees and assigns the
registration rights set forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Affiliate" shall mean a person that directly, or indirectly through
one or more intermediaries, controls or is controlled by, or is under
common control with, a specified person. "Control," whether used as a noun
or a verb, refers to the possession, directly or indirectly, of the power
to direct, or cause the direction of, the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agreement" shall have the meaning set forth in the preamble of this
Agreement.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and also
includes the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company, including any agent thereof;
provided, however, that any such
depositary must at all times have an address in the Borough of Manhattan,
in The City of New York.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations of the SEC
promulgated thereunder.
"Exchange Securities" shall mean the 5 1/4% Notes due 2004 issued by
the Company under the Indenture containing terms identical to the
Registrable Securities (except that (i) interest thereon shall accrue from
the last date on which interest was paid on the Registrable Securities or,
if no such interest has been paid, from the Closing Date, (ii) the
transfer restrictions thereon shall be eliminated and (iii) certain
provisions relating to an increase in the stated rate of interest thereon
shall be eliminated) which are to be offered to Holders of Registrable
Securities in exchange for Registrable Securities pursuant to the Exchange
Offer.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 covering the Registrable Securities
(or, if applicable, on another appropriate form), and all amendments and
supplements to such registration statement, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Holders" shall mean the Initial Purchasers, for so long as they own
any Registrable Securities, and each of their respective successors,
assigns and direct and indirect transferees who become registered owners
of Registrable Securities under the Indenture.
"Indenture" shall mean the Indenture dated as of April 1, 1992, as
supplemented by the First Supplemental Indenture thereto, dated as of
January 1, 1994, the Second Supplemental Indenture thereto, dated as of
October 1, 1999, and the Third Supplemental Indenture thereto, dated as of
the Closing Date, between the Company and Bank One Trust Company, NA (as
successor in interest to The First National Bank of Chicago), as Trustee,
relating to the Securities and the Exchange Securities, and as the same
may be amended or supplemented or modified from time to time in accordance
with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble
of this Agreement.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal
2
amount of Registrable Securities outstanding; provided that whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the
Company or any of its Affiliates (other than the Initial Purchasers or
subsequent holders of Registrable Securities), if such subsequent holders
are deemed to be such Affiliates solely by reason of their holding of such
Registrable Securities, shall be disregarded in determining whether such
consent or approval was given by the Holders of such required percentage
or amount.
"NASD" shall mean the National Association of Securities Dealers,
Inc.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(f).
"Person" shall mean an individual, partnership, joint venture,
limited liability company, corporation, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus
as amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
of this Agreement.
"Registrable Securities" shall mean the Securities; provided,
however, that the Securities shall cease to be Registrable Securities when
(i) a Registration Statement with respect to such Securities shall have
been declared effective under the Securities Act and such Securities shall
have been disposed of pursuant to such Registration Statement, (ii) such
Securities shall have been sold to the public pursuant to Rule 144 (or any
similar provision then in force, but not Rule 144A) under the Securities
Act, (iii) such Securities shall have ceased to be outstanding or (iv)
such Securities have been exchanged for Exchange Securities upon
consummation of the Exchange Offer.
"Registration Default" shall have the meaning set forth in Section
2(e) of this Agreement.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or NASD registration and
filing fees, (ii) all fees and reasonable and
3
properly documented out-of-pocket expenses incurred in connection with
compliance with state or other securities or blue sky laws and compliance
with the rules of the NASD (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with state or other
securities or blue sky qualification of any of the Exchange Securities or
Registrable Securities, which shall not exceed $25,000), (iii) all
reasonable and properly documented out-of-pocket expenses of any Persons
in preparing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting
agreements, securities sales agreements, certificates representing the
Exchange Securities and other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, (v) all fees
and expenses incurred in connection with the listing, if any, of any of
the Exchange Securities or such Registrable Securities, covered by a Shelf
Registration Statement, as applicable, on any securities exchange or
exchanges, (vi) all fees and disbursements relating to the qualification
of the Indenture under applicable securities laws, (vii) the fees and
disbursements of counsel for the Company and the fees and expenses of the
independent public accountants of the Company, including the expenses of
any special audits or "cold comfort" letters required by or incident to
such performance and compliance, (viii) the fees and expenses of a
"qualified independent underwriter" as defined by Conduct Rule 2720 of the
NASD (if required by the NASD rules) in connection with the offering of
the Registrable Securities and the reasonable and properly documented fees
and expenses of its counsel, (ix) the reasonable fees and expenses of the
Trustee, any registrar, any depositary and paying agent, including their
respective counsel, and any escrow agent or custodian, (x) the reasonable
and properly documented fees and out-of-pocket expenses of the Initial
Purchasers in connection with the Exchange Offer, including the reasonable
fees and expenses of counsel to the Initial Purchasers, (xi) the
reasonable and properly documented fees and expenses of one counsel to the
Holders which shall be Xxxxx, Xxxxx & Xxxxx in connection with the Shelf
Registration Statement, and (xii) in the case of an underwritten offering,
any reasonable and properly documented fees and disbursements of the
underwriters customarily required to be paid by issuers or sellers of such
securities, including the reasonable fees and expenses of one counsel to
the underwriters, and the fees and expenses of any special experts
retained by the Company in connection with any Registration Statement but
excluding (except as otherwise provided herein) the reasonable fees of
counsel to the underwriters or the Holders and underwriting.
"Registration Statement" shall mean any registration statement of the
Company relating to any offering of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement, and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SEC" shall mean the U.S. Securities and Exchange Commission.
4
"Securities" shall have the meaning set forth in the preamble of this
Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of
this Agreement which covers all of the Registrable Securities on an
appropriate form under Rule 415 under the Securities Act, or any similar
rule that may be adopted by the SEC, and all amendments and supplements to
such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Trustee" shall mean the trustee under the Indenture.
2. Registration Under the Securities Act.
(a) Exchange Offer Registration. To the extent not prohibited by any
applicable law or applicable interpretation of the staff of the SEC, the
Company shall (A) file with the SEC within 90 calendar days after the
Closing Date, an Exchange Offer Registration Statement covering the offer
by the Company to the Holders to exchange all of the Registrable
Securities for Exchange Securities, (B) use its reasonable best efforts to
cause such Exchange Offer Registration Statement to be declared effective
by the SEC within 180 calendar days after the Closing Date, (C) use its
reasonable best efforts to cause such Registration Statement to remain
effective until the closing of the Exchange Offer and (D) use its
reasonable best efforts to consummate the Exchange Offer within 210
calendar days after the Closing Date. The Exchange Securities will be
issued under the Indenture. Upon the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Exchange
Offer, it being the objective of such Exchange Offer to enable each Holder
(other than Participating Broker-Dealers) eligible and electing to
exchange Registrable Securities for Exchange Securities (assuming that
such Holder is not an Affiliate of the Company, acquires the Exchange
Securities in the ordinary course of such Holder's business and has no
arrangements or understandings with any person to participate in the
Exchange Offer for the purpose of distributing the Exchange Securities) to
trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of a substantial proportion of the
several states of the United States.
In connection with the Exchange Offer, the Company shall:
5
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 20 business
days (or longer if required by applicable federal and state
securities laws) after the date notice thereof is mailed to the
Holders;
(iii) use the services of the Depositary for the Exchange Offer
with respect to Securities evidenced by global certificates;
(iv) permit Holders to withdraw tendered Registrable Securities
at any time prior to 5:00 p.m., New York City time, on the last
business day on which the Exchange Offer shall remain open, by
sending to the institution specified in the notice, a telegram,
telex, facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Registrable Securities delivered
for exchange, and a statement that such Holder is withdrawing its
election to have such Securities exchanged; and
(v) otherwise comply in all material respects with all
applicable federal and state securities laws relating to the Exchange
Offer.
As soon as practicable after the close of the Exchange Offer,
the Company shall:
(i) accept for exchange Registrable Securities duly tendered and
not validly withdrawn pursuant to the Exchange Offer in accordance
with the terms of the Exchange Offer Registration Statement and the
letter of transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange by
the Company; and
(iii) use its reasonable best efforts to cause the Trustee to
promptly authenticate and deliver Exchange Securities to each Holder
of Registrable Securities equal in principal amount to the principal
amount of the Registrable Securities of such Holder so accepted for
exchange.
Interest on each Exchange Security will accrue from the last date on
which interest was paid on the Registrable Securities surrendered in exchange
therefor or, if no interest has been paid on the Registrable Securities, from
the Closing Date. The Exchange Offer shall not be subject to any conditions,
other than (i) that the Exchange Offer, or the making of any exchange by a
Holder, does not violate applicable law or any applicable
6
interpretation of the staff of the SEC, (ii) that no action or proceeding shall
have been instituted or threatened in any court or before any governmental
agency with respect to the Exchange Offer which, in the judgment of the Company,
would reasonably be expected to impair the ability of the Company to proceed
with the Exchange Offer, (iii) that no law, rule or regulation or applicable
interpretations of the staff of the SEC has been issued or promulgated which, in
the good faith determination of the Company, does not permit the Company to
effect the Exchange Offer and (iv) that the Holders tender the Registrable
Securities to the Company in accordance with the Exchange Offer.
As a condition to participating in the Exchange Offer, each Holder of
Registrable Securities (other than Participating Broker-Dealers) who wishes to
exchange such Registrable Securities for Exchange Securities in the Exchange
Offer shall have represented in writing to the Company that at the time of
consummation of the Exchange Offer (i) it is not an Affiliate of the Company or,
if it is an Affiliate, it will comply with the registration and prospectus
delivery requirements of the Securities Act, to the extent applicable, (ii) any
Exchange Securities to be received by it will be acquired in the ordinary course
of business, (iii) at the time of the commencement of the Exchange Offer, it has
no arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Securities or the
Exchange Securities, (iv) it is not acting on behalf of any person who could not
truthfully make the foregoing representations and (v) it shall have made such
other representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4 or another
appropriate form under the Securities Act available or for the Exchange Offer
Registration Statement to be declared effective. To the extent permitted by law,
the Company shall inform the Initial Purchasers of the names and addresses of
the Holders to whom the Exchange Offer is made and the Initial Purchasers shall
have the right to contact such Holders and otherwise facilitate the tender of
Registrable Securities in the Exchange Offer.
(b) Shelf Registration.
(i) If, because of any change in law or currently prevailing
applicable interpretations thereof by the staff of the SEC, the Company is
not permitted to effect the Exchange Offer as contemplated by Section 2(a)
hereof, (ii) if for any other reason the Exchange Offer Registration
Statement is not declared effective within 180 calendar days following the
Closing Date or the Exchange Offer is not consummated within 210 calendar
days after the Closing Date (provided that, if the Exchange Offer
Registration Statement shall be declared effective after such 180-day
period or if the Exchange Offer shall be consummated after such 210-day
period, then the Company's obligation under this clause (ii) arising from
the failure of the Exchange Offer Registration Statement to be declared
effective within such 180-day period or the failure of the Exchange Offer
to be consummated within such 210-day period, respectively, shall
terminate), (iii) if any Holder (other than an Initial
7
Purchaser) is not eligible to participate in the Exchange Offer or elects
to participate in the Exchange Offer but does not receive freely tradeable
Exchange Securities pursuant to the Exchange Offer or (iv) upon the
written request of any of the Initial Purchasers within 90 days following
the consummation of the Exchange Offer with respect to Registrable
Securities that are not permitted to be exchanged for Exchange Securities
in the Exchange Offer or if the Initial Purchasers do not receive freely
tradable Exchange Securities in the Exchange Offer; then, in the case of
each of clauses (i) through (iv), the Company shall, at its cost:
(A) as promptly as practicable, but no later than the 30th
calendar day after such filing obligation arises, file with the SEC a
Shelf Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders from time to time in accordance
with the methods of distribution elected by the Majority Holders of
such Registrable Securities and set forth in such Shelf Registration
Statement; provided, that no Holder shall be entitled to have
Registrable Securities held by it included in the Shelf Registration
Statement unless such Holder agrees in writing to be bound by all of
the provisions of this Agreement applicable to the Holder and
furnishes to the Company in writing such information as the Company
may reasonably request for inclusion in the Shelf Registration
Statement or any Prospectus included therein;
(B) use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the SEC as
promptly as practicable; provided that, with respect to Exchange
Securities received by a broker-dealer in exchange for any securities
that were acquired by such broker-dealer as a result of market-making
or other trading activities, the Company may, if permitted by current
interpretations by the staff of the SEC, file a post-effective
amendment to the Exchange Offer Registration Statement containing the
information required by Regulation S-K Items 507 and/or 508, as
applicable, in satisfaction of its obligations under paragraph (A)
solely with respect to Participating Broker-Dealers who acquired
their Securities as a result of market-making or other trading
activities, and any such Exchange Offer Registration Statement, as so
amended, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement. In
the event that the Company is required to file a Shelf Registration
Statement upon the request of any Holder (other than an Initial
Purchaser) not eligible to participate in the Exchange Offer pursuant
to clause (iii) above or upon the request of any Initial Purchaser
pursuant to clause (iv) above, the Company shall file and use its
reasonable best efforts to have declared effective by the SEC both an
Exchange Offer Registration Statement pursuant to Section 2(a) with
respect to all Registrable Securities and a Shelf
8
Registration Statement (which may be a combined Registration
Statement with the Exchange Offer Registration Statement) with
respect to offers and sales of Registrable Securities held by such
Holder or such Initial Purchaser, as applicable, after completion of
the Exchange Offer;
(C) use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and
amended as required, in order to permit the Prospectus forming part
thereof to be usable by Holders, until the earlier of: (i) a period
of two years, plus any extensions as provided in Section 2(d)(iii)
below, from the date the Shelf Registration Statement is declared
effective by the SEC or (ii) such shorter period which will terminate
when all of the Registrable Securities covered by the Shelf
Registration Statement (a) have been sold pursuant to the Shelf
Registration Statement, (b) cease to be outstanding or (c) become
eligible for resale pursuant to Rule 144 under the Exchange Act; and
(D) notwithstanding any other provisions hereof, use its
reasonable best efforts to ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming a part
thereof and any supplement thereto complies in all material respects
with the Securities Act and the rules and regulations thereunder,
(ii) any Shelf Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
and (iii) any Prospectus forming part of any Shelf Registration
Statement, and any supplement to such Prospectus (as amended or
supplemented from time to time), does not include an untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements, in light of the circumstances under
which they were made, not misleading; provided, however, clauses (ii)
and (iii) shall not apply to any information relating to any Initial
Purchaser or any Holder furnished to the Company by or on behalf of
such Initial Purchaser or Holder expressly for use in the Shelf
Registration Statement.
The Company shall not permit any securities other than the Registrable
Securities to be included in the Shelf Registration Statement.
The Company further agrees, if necessary, to supplement or amend the Shelf
Registration Statement if reasonably requested in writing by the Majority
Holders with respect to information relating to the Holders and otherwise as
required by Section 3(b) below, to use its reasonable best efforts to cause any
such amendment to become effective and such Shelf Registration Statement to
become usable as soon as practicable thereafter and
9
to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Sections 2(a) and 2(b). Each
Holder shall pay all expenses of its counsel other than as provided for in
this Agreement, and underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to a Shelf Registration Statement.
(d) Effective Registration Statement.
(i) The Company shall be deemed not to have used its reasonable
best efforts to cause the Exchange Offer Registration Statement or
the Shelf Registration Statement, as the case may be, to become, or
to remain, effective during the requisite periods set forth herein if
the Company voluntarily takes any action that could reasonably be
expected to result in any such Registration Statement not being
declared effective or remaining effective or in the Holders of
Registrable Securities covered thereby not being able to exchange or
offer and sell such Registrable Securities during that period unless
(A) such action is required by applicable law or (B) such action is
taken by the Company in good faith and for valid business reasons
(but not including avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets or a material
corporate transaction or event so long as the Company promptly
complies with the requirements of Section 3(k) hereof, if applicable.
(ii) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to
Section 2(b) hereof shall not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however,
that if, after it has been declared effective, the offering of
Registrable Securities pursuant to a Registration Statement is
interfered with by any stop order, injunction or other order or
requirement of the SEC or any other applicable governmental agency or
court, such Registration Statement shall be deemed not to have been
effective during the period of such interference, until the offering
of Registrable Securities pursuant to such Registration Statement may
legally resume.
(iii) During any 365-day period, the Company may suspend the
availability of a Shelf Registration Statement and the use of the
related Prospectus, as provided in Section 3(e)(vi), for up to four
periods of up to 45 consecutive days (except for the consecutive
45-day period immediately prior to maturity of the Securities), but
no more than an aggregate of 90 days during any 365-day period, if
any event shall occur (A) as set forth in Section 2(d)(i) or (B)
that, in the reasonable good faith
10
determination of the Company, in accordance with its understanding of
the disclosure requirements of applicable securities law based on
advice of counsel, would require disclosure of any financing,
acquisition, corporate reorganization or other transaction or
development involving the Company or one of its Affiliates that is or
would be material to the Company and that, in the reasonable judgment
of the Company, such disclosure would not at that time be in the best
interests of the Company (a "Material Event Election"), provided that
any period during which the Company requires Holders to refrain from
disposing of their Registrable Securities due to a Material Event
Election (an "Election Period") shall be deemed to trigger the
obligation of the Company to pay additional interest in accordance
with Section 2(e) to the extent that such Election Period, together
with all other days that the Shelf Registration Statement has become
unusable in any consecutive twelve-month period, exceeds 90 days in
the aggregate. The two-year period provided for in Section 2(b)(i)(C)
above shall be extended by an amount of time equal to all such
Election Periods.
(e) Increase in Interest Rate. The Indenture provides that in the
event that (i) the Exchange Offer Registration Statement is not filed with
the SEC on or prior to the 90th calendar day after the Closing Date, (ii)
the Exchange Offer Registration Statement is not declared effective on or
prior to the 180th calendar day after the Closing Date, (iii) the Exchange
Offer is not consummated on or prior to the 210th calendar day following
the Closing Date, or (iv) if required, a Shelf Registration Statement with
respect to the Registrable Securities is not filed with the SEC on or
prior to the 30th calendar day after such filing obligation arises or is
not declared effective on or prior to the 45th calendar day after the
filing thereof, or (v) the Election Periods exceed, in the aggregate, 90
days during any 365 day period (each, a "Registration Default"), the per
annum interest rate borne by the Registrable Securities affected thereby
shall be increased by one-quarter of one percent (0.25%) per annum
following a Registration Default; provided that the maximum aggregate
additional interest with respect to the Registrable Securities may in no
event exceed one-quarter of one percent (0.25%) per annum. Upon (w) the
filing of the Exchange Offer Registration Statement after the 90 day
period described in clause (i) above, (x) the effectiveness of the
Exchange Offer Registration Statement after the 180-day period described
in clause (ii) above, (y) the consummation of the Exchange Offer after the
210-day period described in clause (iii) above, or (z) the filing or
effectiveness of a Shelf Registration Statement after the applicable
period described in clause (iv) above, the interest rate borne by the
Registrable Securities from the date of such filing, effectiveness or
consummation, as the case may be, shall be reduced to the original
interest rate if the Company is otherwise in compliance with this
paragraph; provided, however, that, if after any such reduction in
interest rate, a different Registration Default occurs, the interest rate
shall again be increased pursuant to the foregoing provisions. No increase
in the rate under clause (i), (ii) or (iii) above shall be payable for any
period during which a Shelf Registration is effective.
(f) Specific Enforcement. Without limiting the remedies available to
the Initial
11
Purchasers and the Holders, the Company acknowledges that any failure by
the Company to comply with its obligations under Sections 2(a) and 2(b)
hereof may result in irreparable injury to the Initial Purchasers or the
Holders for which there is no 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 Company's
obligations under Sections 2(a) and 2(b).
3. Registration Procedures. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement, within
the relevant time periods specified in Section 2, on the appropriate form
under the Securities Act, which form shall (i) be selected by the Company,
(ii) in the case of a Shelf Registration Statement, be available for the
sale of the Registrable Securities by the selling Holders thereof and
(iii) comply as to form in all material respects with the requirements of
the applicable form and include or incorporate by reference all financial
statements required by the SEC to be filed therewith, and use its
reasonable best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under
applicable law to keep such Registration Statement effective for the
applicable period; cause each Prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act with respect to the disposition of all
Securities covered by each Registration Statement during the applicable
period in accordance with the intended method or methods of distribution
by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities, at least five business days prior to filing, that
a Shelf Registration Statement with respect to the Registrable Securities
is being filed and advising such Holders that the distribution of
Registrable Securities will be made in accordance with the method elected
by the Majority Holders; (ii) furnish to each Holder of Registrable
Securities, to one counsel for the Initial Purchasers, to one counsel for
the Holders and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter
may reasonably request, including financial statements and schedules and,
if the Holder so reasonably requests, all exhibits (including those
incorporated by reference) in order to facilitate the public sale or other
disposition of the Registrable Securities; and (iii) subject to the last
paragraph of this Section 3, hereby consent to the use of the Prospectus,
including each preliminary Prospectus, or any amendment or supplement
thereto by each of the selling Holders of
12
Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(d) use its reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue sky"
laws of such jurisdictions as any Holder of Registrable Securities covered
by a Registration Statement and each underwriter of an underwritten
offering of Registrable Securities shall reasonably request by the time
the applicable Registration Statement is declared effective by the SEC or
shortly thereafter, keep each such registration or qualification effective
during the period such Registration Statement is required to be effective
or until all of such Registrable Securities are sold, whichever is
shortest, and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Holder to consummate the disposition
in each such jurisdiction of such Registrable Securities owned by such
Holder; provided, however, that the Company shall not be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for
this Section 3(d) or (ii) take any action which would subject it to
general service of process or taxation in any such jurisdiction;
(e) in the case of a Shelf Registration, promptly notify each Holder
of Registrable Securities included in the Shelf Registration and one
counsel for such Holders and, if requested by such Holder or counsel,
confirm such advice in writing promptly (i) when a Registration Statement
has become effective and when any post-effective amendments and
supplements thereto become effective, (ii) of any request by the SEC or
any state securities authority for post-effective amendments and
supplements to a Registration Statement and Prospectus or for additional
information after the Registration Statement has become effective, (iii)
of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) between the effective
date of a Registration Statement and the closing of any sale of
Registrable Securities covered thereby, the representations and warranties
of the Company contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to such offering
cease to be true and correct in all material respects, (v) of the receipt
by the Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose, (vi)
of the happening of any event or the discovery of any facts during the
period a Shelf Registration Statement is effective (including as
contemplated in Section 2(d)(iii) hereof) which (A) is contemplated in
Section 2(d)(i) or (B) makes any statement made in such Shelf Registration
Statement or the related Prospectus untrue in any material respect or
which requires the making of any changes in such Shelf Registration
Statement or Prospectus in order to make the statements therein not
misleading and (vii) of any determination by the Company that a
post-effective amendment to a Registration Statement is necessary;
13
(f) (A) in the case of an Exchange Offer Registration Statement, (i)
include in the Exchange Offer Registration Statement a "Plan of
Distribution" section covering the use of the Prospectus included in the
Exchange Offer Registration Statement by broker-dealers who have exchanged
their Registrable Securities for Exchange Securities for the resale of
such Exchange Securities, (ii) furnish to each broker-dealer who has
delivered to the Company a notice in writing and who desires to
participate in the Exchange Offer, without charge, as many copies of each
Prospectus included in the Exchange Offer Registration Statement,
including any preliminary prospectus, and any amendment or supplement
thereto, as such broker-dealer may reasonably request, (iii) include in
the Exchange Offer Registration Statement a statement that any
broker-dealer who holds Registrable Securities acquired for its own
account as a result of market-making activities or other trading
activities (a "Participating Broker-Dealer"), and who receives Exchange
Securities for Registrable Securities pursuant to the Exchange Offer, may
be deemed a statutory underwriter and must deliver a prospectus meeting
the requirements of the Securities Act in connection with any resale of
such Exchange Securities, (iv) subject to the last paragraph of this
Section 3, hereby consent to the use of the Prospectus forming part of the
Exchange Offer Registration Statement or any amendment or supplement
thereto, by any broker-dealer in connection with the sale or transfer of
the Exchange Securities covered by the Prospectus or any amendment or
supplement thereto, provided such Person has provided the Company in
writing with any information required by Item 507 of Regulation S-K (or
any similar provision then in force) for inclusion in the prospectus
contained in the Exchange Offer Registration Statement, and (v) include in
the transmittal letter or similar documentation to be executed by an
exchange offeree in order to participate in the Exchange Offer the
following provision:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage
in, a distribution of Exchange Securities. If the undersigned is a
broker-dealer that will receive Exchange Securities for its own
account in exchange for Registrable Securities, it represents that
the Registrable Securities to be exchanged for Exchange Securities
were acquired by it as a result of market-making activities or other
trading activities and acknowledges that it will deliver a
prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Securities pursuant to
the Exchange Offer; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act;"
(B) to the extent any Participating Broker-Dealer participates in
the Exchange Offer, the Company shall use its reasonable best efforts to
cause to be delivered at the request of an entity representing the
Participating Broker-Dealers (which entity shall be Xxxxxxx Xxxxx Xxxxxx
Inc., unless it elects not to act as such representative) any "cold
comfort" letters with respect to the Prospectus in the form existing on
the last date for which
14
exchanges are accepted pursuant to the Exchange Offer and with respect to
each subsequent amendment or supplement, if any, effected during the
period specified in clause (C) below;
(C) to the extent any Participating Broker-Dealer participates in
the Exchange Offer, the Company shall use its reasonable best efforts to
maintain the effectiveness of the Exchange Offer Registration Statement
for a period of 180 days following the closing of the Exchange Offer or
such shorter period which will terminate when the Participating
Broker-Dealers have completed all resales subject to applicable prospectus
delivery requirements; and
(D) the Company shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement as would
otherwise be contemplated by Section 3(b) hereof, or take any other action
as a result of this Section 3(f), for a period exceeding 90 days after the
last date for which exchanges are accepted pursuant to the Exchange Offer
(as such period may be extended by the Company) and Participating
Broker-Dealers shall not be authorized by the Company to, and shall not,
deliver such Prospectus after such period in connection with resales
contemplated by this Section 3;
(g) (i) in the case of an Exchange Offer, furnish to one counsel for
the Initial Purchasers and (ii) in the case of a Shelf Registration,
furnish to one counsel for the Holders of Registrable Securities copies of
any request by the SEC or any state securities authority for amendments or
supplements to a Registration Statement and Prospectus or for additional
information;
(h) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement as soon as
practicable and provide notice, as soon as practicable, to each Holder of
the withdrawal of any such order;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits thereto,
unless requested in writing);
(j) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold
and not bearing any restrictive legends; and cause such Registrable
Securities to be in such denominations (consistent with the provisions of
the Indenture) in a form eligible for deposit with the Depositary and
registered in such names as the selling Holders or the underwriters, if
any, may reasonably request in writing at least two business days prior to
the closing of any sale of Registrable Securities;
(k) in the case of a Shelf Registration, upon the occurrence of any
event or the
15
discovery of any facts, each as contemplated by Section 3(e)(vi) hereof,
use its reasonable best efforts to prepare a supplement or post-effective
amendment to a Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not contain at the time of
such delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company
agrees to notify each Holder to suspend use of the Prospectus as promptly
as practicable after the occurrence of such an event, and each Holder
hereby agrees to suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or
omission. At such time as such public disclosure is otherwise made or the
Company determines that such disclosure is not necessary, in each case to
correct any misstatement of a material fact or to include any omitted
material fact, the Company agrees promptly to notify each Holder of such
determination and to furnish each Holder such numbers of copies of the
Prospectus, as amended or supplemented, as such Holder may reasonably
request;
(l) use its reasonable best efforts to obtain CUSIP numbers for all
Exchange Securities, or Registrable Securities, as the case may be, not
later than the effective date of a Registration Statement, and provide the
Trustee with printed certificates for the Exchange Securities or
Registrable Securities, as the case may be, in a form eligible for deposit
with the Depositary;
(m) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions (including those reasonably requested by the Majority
Holders of the Registrable Securities) in order to expedite or facilitate
the disposition of such Registrable Securities and in such connection,
whether or not an underwriting agreement is entered into and whether or
not the registration is an underwritten registration, in a manner that is
reasonable and customary:
(i) make such representations and warranties to the Holders of
such Registrable Securities and the underwriters, if any, in form,
substance and scope as are customarily made by the Company to
underwriters in similar underwritten offerings as may be reasonably
requested by such Holders and underwriters;
(ii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if
any, and the Holders of a majority in principal amount of the
Registrable Securities being sold) addressed to each selling Holder
and the underwriters, if any, covering the matters customarily
covered in opinions requested in sales of securities or underwritten
offerings;
16
(iii) obtain "cold comfort" letters and updates thereof from
the Company's independent certified public accountants addressed to
the underwriters, if any, and will use reasonable best efforts to
have such letters addressed to the selling Holders of Registrable
Securities, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters to
underwriters in connection with similar underwritten offerings;
(iv) enter into a securities sales agreement with the Holders
and an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose of
soliciting purchases of Registrable Securities, which agreement
shall be in form, substance and scope customary for similar
offerings by the Company;
(v) if an underwriting agreement is entered into in the case
of an underwritten offering, cause the same to set forth
indemnification provisions and procedures substantially equivalent
to the indemnification provisions and procedures set forth in
Section 5 hereof with respect to the underwriters and all other
parties to be indemnified pursuant to Section 5 hereof; and
(vi) deliver such documents and certificates as may be
reasonably requested by the underwriters or the Holders and as are
customarily delivered in similar offerings by the Company.
The above shall be done at (i) the effectiveness of such
Registration Statement (and, if reasonably requested in writing by the
Majority Holders), each post-effective amendment thereto) and (ii) each
closing under any underwriting or similar agreement as and to the extent
required thereunder. In the case of any underwritten offering, the Company
shall provide written notice to the Holders of all Registrable Securities
of such underwritten offering at least 10 days prior to the filing of a
prospectus supplement for such underwritten offering. Such notice shall
(x) offer each such Holder the right to participate in such underwritten
offering, (y) specify a date, which shall be no earlier than 10 days
following the date of such notice, by which such Holder must inform the
Company of its intent to participate in such underwritten offering and (z)
include the instructions such Holder must follow in order to participate
in such underwritten offering;
(o) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Registrable Securities
and any underwriters participating in any disposition pursuant to a Shelf
Registration Statement and any U.S. counsel or accountant retained by such
Holders or underwriters, all financial and other records and pertinent
corporate documents of the Company reasonably requested by any such
Persons, and cause the officers, employees and any other agents of the
Company to supply all information reasonably requested by any such
representative, underwriter, special counsel
17
or accountant in connection with a Registration Statement; provided that
any such records, documents and such information that is designated in
writing by the Company, in good faith, as confidential at the time of
delivery of such records, documents or information shall be kept
confidential by any such representative, underwriter, counsel or
accountant and shall be used only in connection with such Shelf
Registration Statement, unless such information has become available (not
in violation or breach of this Agreement) to the public generally or
through a third party without an accompanying obligation of
confidentiality, and except that such representative, underwriter, counsel
or accountant shall have no liability, and shall not be in breach of this
provision, if disclosure of such confidential information is made in
connection with a court proceeding or required by law, and the Company
shall be entitled to request that such representative, underwriter,
counsel or accountant sign a confidentiality agreement to the foregoing
effect. Each such person will be required to agree that information
obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such is
made generally available to the public through no fault or action of such
person. Each selling Holder of such Registrable Securities will be
required to further agree that it will, upon learning that disclosure of
confidential information is necessary, give notice to the Company to allow
the Company at its expense to undertake appropriate action to prevent
disclosure of the confidential information;
(p) (i) in the case of an Exchange Offer, within a reasonable time
prior to the filing of any Exchange Offer Registration Statement, any
Prospectus forming a part thereof, any amendment to an Exchange Offer
Registration Statement or amendment or supplement to a Prospectus, provide
copies of such document to the Initial Purchasers, and make such changes
in any such document prior to the filing thereof as the Initial Purchasers
or their counsel may reasonably request; (ii) in the case of a Shelf
Registration, a reasonable time prior to filing any Shelf Registration
Statement, any Prospectus forming a part thereof, any amendment to such
Shelf Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Holders of Registrable
Securities, to the Initial Purchasers, to counsel on behalf of the Holders
and to the underwriter or underwriters of an underwritten offering of
Registrable Securities, if any, and make such changes in any such document
prior to the filing thereof as counsel to the Initial Purchasers, the
Holders or any underwriter may reasonably request; and (iii) cause the
representatives of the Company to be available for discussion of such
document as shall be reasonably requested by the Holders of Registrable
Securities, the Initial Purchasers on behalf of such Holders or any
underwriter, and shall not at any time make any filing of any such
document of which such Holders, the Initial Purchasers on behalf of such
Holders, their counsel or any underwriter shall not have previously been
advised and furnished a copy or to which such Holders, the Initial
Purchasers on behalf of such Holders, their counsel or any underwriter
shall reasonably object within a reasonable time period;
(q) in the case of a Shelf Registration, use its reasonable best
efforts to cause the
18
Registrable Securities to be rated with at least one "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g)(2) under the Securities Act), if so requested by the Majority
Holders or by the underwriter or underwriters of an underwritten offering,
unless the Registrable Securities are already so rated;
(r) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering at least twelve (12) months which shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder; and
(s) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter and its counsel.
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Securities to furnish to the Company or its counsel such
information regarding such Holder and the proposed distribution by such Holder
of such Registrable Securities, as the Company may from time to time reasonably
request, and agree in writing to be bound by the Agreement, including the
indemnification provisions.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Company of the happening of any event
or the discovery of any facts, each of the kind described in Sections 2(d)(i)
and 3(e)(ii)-(vii) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder's
receipt of (i) the copies of the supplemented or amended Prospectus contemplated
by Section 3(k) hereof or (ii) written notice from the Company that the Shelf
Registration Statement is once again effective and that no supplement or
amendment is required. If so directed by the Company, such Holder will deliver
to the Company (at the Company's expense) all copies in the Holder's possession,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice.
If the Company shall give any such notice to suspend the disposition
of Registrable Securities pursuant to a Shelf Registration Statement as a result
of the happening of any event or the discovery of any facts, each of the kind
described in Sections 2(d)(i) and 3(e)(vi) hereof, the Company shall be deemed
to have used its reasonable best efforts to keep the Shelf Registration
Statement effective during such period of suspension; provided that (i) such
period of suspension shall not exceed the time periods provided in Section
2(d)(iii) hereof and (ii) the Company shall, if necessary, use its reasonable
best efforts to file and have declared effective (if an amendment) as soon as
practicable an amendment or supplement to the Shelf Registration Statement and
shall extend the period during which the Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days during the
period from and including the date of the giving of such notice to and including
the date when the Holders shall have received copies of the supplemented or
amended
19
Prospectus necessary to resume such dispositions.
4. Underwritten Registrations. If any of the Registrable Securities
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Majority Holders of such Registrable
Securities included in such offering and shall be reasonably acceptable to the
Company.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Initial Purchaser, each Holder, including Participating
Broker-Dealers, each underwriter who participates in an offering of
Registrable Securities, their respective Affiliates, and their
respective directors, officers, employees, agents, and each Person,
if any, who controls any Initial Purchaser or any Holder within the
meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any properly
documented out-of-pocket legal or other expenses reasonably incurred
by the Initial Purchaser, any Holder or any such controlling or
affiliated Person in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged
untrue statement of a material fact contained in any Registration
Statement or any amendment thereof, pursuant to which Exchange
Securities or Registrable Securities were registered under the
Securities Act, including all documents incorporated therein by
reference, or caused by 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, or caused by any untrue
statement or alleged untrue statement of a material fact contained in
any Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact
necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except
insofar as such losses, claims, damages or liabilities are caused by
any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Initial Purchaser any
Holder or underwriter furnished to the Company in writing by or on
behalf of such Initial Purchaser or by or relating to any Holder or
underwriter who participates in an offering of Registrable
Securities, in each case expressly for use therein.
20
(b) Each Holder agrees, severally and not jointly, to indemnify
and hold harmless the Company, each Initial Purchaser, each
underwriter who participates in an offering of Registrable
Securities, and the other selling Holders, and each of their
respective Affiliates and directors, officers (including each
director and officer of the Company who signed the Registration
Statement) employees and agents and each Person, if any, who controls
the Company, any Initial Purchaser, any underwriter or any other
selling Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any
and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses described in the indemnity
contained in Section 5(a), as incurred), but only with reference to
information relating to such Holder furnished to the Company in
writing by or on behalf of such Holder expressly for use in any
Registration Statement or any amendment thereof or any Prospectus or
any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of
which indemnity may be sought pursuant to either paragraph (a) or
paragraph (b) above, such Person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought
(the "indemnifying party") in writing (but the failure to so notify
the indemnifying party will not relieve it from any liability which
it may have to any indemnified party except to the extent it is
materially prejudiced or harmed) and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (a) (if the indemnifying party is the
Company) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Initial Purchasers and all
Persons, if any, who control any Initial Purchaser within the meaning
of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, (b) (if the indemnifying party is a Holder) the fees
and expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors, its officers who sign the
Registration Statement and all Persons, if any, who control the
Company within the meaning of either such Section and (c) (if the
indemnifying party is the Company) the fees and expenses of more than
one separate firm (in addition to any local counsel) for all Holders
and all Persons, if any, who control any Holders within the
21
meaning of either such Section, and that all such fees and expenses
shall be reimbursed as they are incurred. In the case of any such
separate firm for the Initial Purchasers and such control Persons of
the Initial Purchasers, such firm shall be designated in writing by
Xxxxxxx Xxxxx Xxxxxx Inc. In the case of any such separate firm for
the Holders and such Persons who control Holders, such firm shall be
designated in writing by the Majority Holders. In all other cases,
such firm shall be designated in writing by the Company. The
indemnifying party shall not be liable for any settlement of any
proceeding affected without its written consent, but if settled with
such consent or if there is a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement
of any proceeding effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by such
indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, which consent shall not be unreasonably withheld,
effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified
party, unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on claims that are the
subject matter of such proceeding and (ii) does not include a
statement as to an admission of fault, culpability or failure to act
by or on behalf of any indemnified party.
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 5 is unavailable to an indemnified
party or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party under
such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand
and of the indemnified party or parties on the other hand in
connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative fault of such indemnifying
party or parties on the one hand and the indemnified party or parties
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 such indemnifying party or parties
or such indemnified party or parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The obligations of the Initial
Purchasers and the Holders of Registrable Securities to contribute
pursuant to this Section 5 are several in proportion to the
respective number of Securities
22
have purchased hereunder, and not joint.
(e) The Company, the Initial Purchasers, and each Holder of
Registrable Securities agree that it would not be just or equitable
if contribution pursuant to this Section 5 were determined by pro
rata allocation (even if the Initial Purchasers were treated as one
entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any out-of-pocket legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5, no Holder shall be
required to indemnify or contribute any amount in excess of the
amount by which the total price at which Registrable Securities were
sold by such Holder exceeds the amount of any damages that such
Holder has otherwise been required to pay 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 Securities 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, if any, who controls an
Initial Purchaser or Holder or underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as such Initial Purchaser
or Holder or underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and
each Person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Company. The
remedies provided for in this Section 5 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Initial Purchaser or any Holder or underwriter, or any Person controlling
any Initial Purchaser or any Holder or underwriter, or by or on behalf of the
Company, its officers or directors or any Person controlling the Company, (iii)
acceptance of any of the Exchange Securities and (iv) any sale of Registrable
Securities pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is
subject to the reporting requirements of Section 13 or 15 of the
Exchange Act, the Company covenants that it will file the reports
required to be filed by it under Section 13(a) or 15(d) of the
Exchange Act and the rules and regulations adopted by the SEC
thereunder, that if it ceases to be so required to file such reports,
it will upon the request of any Holder of Registrable Securities
23
(i) make publicly available or cause to be made publicly available
such information as is necessary to permit sales pursuant to Rule 144
under the Securities Act, (ii) deliver or cause to be delivered such
information to a prospective purchaser as is necessary to permit
sales pursuant to Rule 144A under the Securities Act and it will take
such further action as any Holder of Registrable Securities may
reasonably request, and (iii) take such further action that is
reasonable in the circumstances, in each case, to the extent required
from time to time to enable such Holder to sell its Registrable
Securities without registration under the Securities Act within the
limitation of the exemptions provided by (x) Rule 144 under the
Securities Act, as such rule may be amended from time to time, (y)
Rule 144A under the Securities Act, as such rule may be amended from
time to time, or (z) any similar rules or regulations hereafter
adopted by the SEC. Upon the written request of any Holder of
Registrable Securities, the Company will deliver to such Holder a
written statement as to whether it has complied with such
requirements.
(b) No Inconsistent Agreements. The Company has not entered into
nor will the Company on or after the date of this Agreement enter
into any agreement which is inconsistent with the rights granted to
the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's
other issued and outstanding securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from
the material provisions hereof may not be given unless the Company
has obtained the written consent of the Majority Holders of the
outstanding Registrable Securities affected by such amendment,
modification, supplement, waiver or departure.
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telecopier, or any courier guaranteeing
overnight delivery (i) if to a Holder (other than an Initial
Purchaser), at the most current address set forth on the records of
the Registrar under the Indenture, (ii) if to an Initial Purchaser,
at the most current address given by such Initial Purchaser to the
Company by means of a notice given in accordance with the provisions
of this Section 6(d), which address initially is the address set
forth in the Purchase Agreement; and (iii) if to the Company,
initially at its addresses set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 6(d).
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered;
five business days after being deposited in the mail, postage
prepaid, if mailed; when receipt is acknowledged, if telecopied; and
on the
24
next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the Person giving the same to the
Trustee, at the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and
transferees of each of the parties, including, without limitation and
without the need for an express assignment, subsequent Holders;
provided that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of 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.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company
and the Initial Purchasers and shall have the right to enforce such
agreements directly to the extent it deems such enforcement necessary
or advisable to protect its rights or the rights of Holders
hereunder.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning
hereof.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York,
without regard to its conflict of laws provisions.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
[Signatures on next page]
25
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
THE DOW CHEMICAL COMPANY
By: X.X. Xxxxxxx
---------------------------------
Name: X.X. Xxxxxxx
Title: Vice President and Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written:
XXXXXXX XXXXX BARNEY INC.
BANC OF AMERICA SECURITIES LLC
BEAR, XXXXXXX & CO. INC.
BANC ONE CAPITAL MARKETS, INC.
RBC DOMINION SECURITIES CORPORATION
THE XXXXXXXX CAPITAL GROUP, L.P.
By: XXXXXXX XXXXX XXXXXX INC.
By: E. Xxxxxx Xxxxxx
--------------------------------------
Name: E. Xxxxxx Xxxxxx
Title: Director
For themselves and the other Initial Purchasers
26
