Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of
February 26, 1998 by and among Xxxx Atlantic Corporation, a Delaware corporation
("XXXX ATLANTIC"), Xxxx Atlantic Financial Services, Inc. ("FSI"), a Delaware
corporation and wholly-owned subsidiary of Xxxx Atlantic, and the Managers named
in the Purchase Agreement as defined below (the "MANAGERS") pursuant to the
Purchase Agreement, dated as of February 12, 1998 (the "PURCHASE AGREEMENT"),
among Xxxx Atlantic, FSI and the Managers. In order to induce the Managers to
enter into the Purchase Agreement, Xxxx Atlantic and FSI have agreed to provide
the registration rights set forth in this Agreement. The execution of this
Agreement is a condition to the closing under the Purchase Agreement.
Xxxx Atlantic and FSI agree with the Managers, (i) for their benefit as
Managers and (ii) for the benefit of the beneficial owners, including the
Managers, (each a "HOLDER") from time to time of the Notes (as defined herein),
as follows:
SECTION 1. DEFINITIONS. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
AFFILIATE: With respect to any specified person, an "affiliate," as
defined in Rule 144, of such person.
AMENDMENT EFFECTIVENESS DEADLINE DATE: See Section 2(d) hereof.
BUSINESS DAY: Each Monday, Tuesday, Wednesday, Thursday and Friday that
is not a day on which banking institutions in The City of New York or
Wilmington, Delaware are authorized or obligated by law or executive order to
close.
DAMAGES ACCRUAL PERIOD: See Section 2(e) hereof
DAMAGES PAYMENT DATE: Each Interest Payment Date (as defined in the
Indenture).
DEFERRAL NOTICE: See Section 3(i) hereof
DEFERRAL PERIOD: See Section 3(i) hereof
EFFECTIVENESS PERIOD: The period commencing with the date hereof and
ending on the earliest of (i) the redemption or exchange into Ordinary Shares or
other Exchange Property (as defined in the Indenture) or other retirement and
cancellation pursuant to the Indenture of all Notes, (ii) the first date on
which there are no longer any Registrable Securities and (iii) April 1, 2003.
EVENT: See Section 2(e) hereof.
EVENT TERMINATION DATE: See Section 2(e) hereof.
EVENT DATE: See Section 2(e) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
FILING DEADLINE DATE: See Section 2(a) hereof.
HOLDER: See the second paragraph of this Agreement.
INDENTURE: The Indenture dated as of the date hereof among Xxxx
Atlantic, FSI and, The Chase Manhattan Bank as trustee, pursuant to which the
Notes are being issued, as amended from time to time.
INITIAL SHELF REGISTRATION STATEMENT: See Section 2(a) hereof.
LIQUIDATED DAMAGES AMOUNT: See Section 2(e) hereof.
LOSSES: See Section 6 hereof.
MATERIAL EVENT: See Section 3(i) hereof.
NOTES: The FSI 5.75% Senior Exchangeable Notes due 2003 Exchangeable
for Ordinary Shares of Telecom Corporation of New Zealand Limited ("TCNZ"), to
be purchased by the Managers pursuant to the Purchase Agreement.
NOTICE: See Section 2(d) hereof
NOTICE HOLDER: On any date, any Holder that has delivered Notice to
Xxxx Atlantic on or prior to such date.
ORDINARY SHARES: The ordinary shares of TCNZ, and any other shares of
TCNZ as may constitute "Ordinary Shares" for purposes of the Indenture,
including the Underlying Ordinary Shares.
PROSPECTUS: The prospectus included in any 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 promulgated under the Securities Act), as
amended or supplemented by any amendment or prospectus supplement,
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including post-effective amendments, and all material incorporated by reference
or explicitly deemed to be incorporated by reference in such Prospectus.
PURCHASE AGREEMENT: See the first paragraph of this Agreement.
RECORD HOLDER: (i) With respect to any Damages Payment Date relating to
any Note as to which any Liquidated Damages Amount has accrued, the Registered
Holder of such Note on the record date with respect to the interest payment date
under the Indenture, as the case may be, on which such Damages Payment Date
shall occur.
REGISTERED HOLDER: The holder of a Note that is registered as such on
the books of The Depository Trust Company ("DTC"), Xxxxxx Guaranty Trust Company
of New York, Brussels office, as operator of the Euroclear System ("EUROCLEAR")
or Cedel Bank, societe anonyme ("CEDEL").
REGISTRABLE SECURITIES: Each Note until (A) the earliest of (i) its
effective registration under the Securities Act and resale in accordance with
the Registration Statement covering it, (ii) expiration of the holding period
that would be applicable thereto under Rule 144(k) were it not held by an
Affiliate of Xxxx Atlantic or FSI or (iii) its sale to the public pursuant to
Rule 144 and (B) as a result of the event or circumstance described in any of
the foregoing clauses (i) through (iii), the legends with respect to transfer
restrictions required under the Indenture are removed or removable in accordance
with the terms of the Indenture, as the case may be.
REGISTRATION EXPENSES: See Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of Xxxx Atlantic and
FSI that covers the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or explicitly deemed to be incorporated
by reference in such registration statement.
RESTRICTED SECURITIES: As this term is defined in Rule 144.
REGULATION S: Regulation S under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
RULE 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
RULE 144A: Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
SEC: The U.S. Securities and Exchange Commission.
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SECURITIES ACT: The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the SEC thereunder.
SHELF REGISTRATION STATEMENT: See Section 2(a) hereof.
SUBSEQUENT SHELF REGISTRATION STATEMENT: See Section 2(b) hereof.
TRUSTEE: The Chase Manhattan Bank (or any successor entity), the
Trustee under the Indenture.
UNDERLYING ORDINARY SHARES: The Ordinary Shares for which the Notes
are exchangeable.
SECTION 2. SHELF REGISTRATION. (a) Xxxx Atlantic and FSI shall prepare
and file with the SEC, by June 1, 1999 (the "FILING DEADLINE DATE") a
Registration Statement for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 of the Securities Act (a "SHELF REGISTRATION
STATEMENT") registering the resale from time to time by Holders thereof of all
of the Registrable Securities (the "INITIAL SHELF REGISTRATION STATEMENT"). The
Initial Shelf Registration Statement shall be on Form S-3 or another appropriate
form permitting registration of such Registrable Securities for resale by such
Holders in accordance with the methods of distribution elected by the Holders
and set forth in the Initial Shelf Registration Statement. Xxxx Atlantic and FSI
shall use their best efforts to cause the Initial Shelf Registration Statement
to become effective under the Securities Act as promptly as is practicable but
in any event by September 1, 1999 (the "EFFECTIVENESS DEADLINE DATE") and to
keep the Initial Shelf Registration Statement (or any Subsequent Shelf
Registration Statement) continuously effective under the Securities Act until
the expiration of the Effectiveness Period. At the time the Initial Shelf
Registration Statement becomes effective, each Holder that became a Notice
Holder on or prior to the date ten Business Days prior to such time of
effectiveness shall be named as a selling securityholder in the Initial Shelf
Registration Statement and the related Prospectus in such a manner as to permit
such Holder to deliver such Prospectus to purchasers of Registrable Securities
in accordance with applicable law.
(b) If (i) the Shelf Registration Statement is not filed with
the SEC or is not declared effective by the SEC by the Effectiveness Deadline
Date or (ii) at any time during which the Shelf Registration Statement is
required to be kept effective, it shall cease to be effective (other than as a
result of the effectiveness of a successor registration statement), Xxxx
Atlantic and FSI shall use their best efforts to obtain the prompt withdrawal of
any order suspending the effectiveness thereof, and in any event shall within
forty-five (45) days of such cessation of effectiveness amend the Shelf
Registration Statement in a manner reasonably expected to obtain the withdrawal
of the order suspending the effectiveness thereof, or file an additional Shelf
Registration Statement covering all of the securities that as of the date of
such filing are Registrable Securities (a "SUBSEQUENT SHELF REGISTRATION
STATEMENT"). If a Subsequent Shelf Registration Statement is filed, Xxxx
Atlantic and FSI shall use their best efforts
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to cause the Subsequent Shelf Registration Statement to become effective within
forty-five (45) days of such cessation of effectiveness and to keep such
Registration Statement (or subsequent Subsequent Shelf Registration Statement)
continuously effective until the end of the Effectiveness Period.
(c) Xxxx Atlantic and FSI shall supplement and amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by Xxxx Atlantic and FSI for such Shelf
Registration Statement, if required by the Securities Act or, to the extent to
which Xxxx Atlantic and FSI do not reasonably object, as reasonably requested by
the Managers or by the Trustee on behalf of the Registered Holders.
(d) Each Holder of Registrable Securities agrees that if such
Holder wishes to sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus, it will do so only in accordance with this
Section 2(d) and Section 3(i) hereof. Each Holder of Registrable Securities
wishing to sell Registrable Securities pursuant to a Shelf Registration and
related Prospectus agrees to give written notice ("NOTICE") to Xxxx Atlantic and
FSI at least eight (8) Business Days prior to any intended distribution of
Registrable Securities under the Shelf Registration Statement which notice shall
specify the date on which such Holder intends to begin such distribution and any
information with respect to such Holder and the intended distribution of
Registrable Securities by such Holder required to amend or supplement the
Registration Statement with respect to such intended distribution of Registrable
Securities by such Holder. From and after the date the Initial Shelf
Registration Statement becomes effective, Xxxx Atlantic and FSI shall (i) if
required by applicable law, file, as promptly as is reasonably practicable after
the date Notice is delivered, and in any event within ten (10) Business Days
after such date, with the SEC a post-effective amendment to the Shelf
Registration Statement or prepare and, if required by applicable law, file, as
promptly as is reasonably practicable after Notice is delivered, and in any
event within two (2) Business Days of the date distribution begins or such other
period as may be required by applicable law, a supplement to the related
Prospectus or a supplement or amendment to any document incorporated therein by
reference or file any other required document so that the Holder delivering such
Notice is named as a selling securityholder in the Shelf Registration Statement
and the related Prospectus in such a manner as to permit such Holder to deliver
such Prospectus to purchasers of the Registrable Securities in accordance with
applicable law and, if Xxxx Atlantic and FSI shall file a post-effective
amendment to the Shelf Registration Statement, use their best efforts to cause
such post-effective amendment to become effective under the Securities Act as
promptly as is reasonably practicable, but in any event by the date (the
"AMENDMENT EFFECTIVENESS DEADLINE DATE") forty-five (45) days after the date
such post-effective amendment is required by this clause to be filed; (ii)
provide such Holder copies of any documents filed pursuant to Section 2(d)(i);
and (iii) notify such Holder as promptly as reasonably practicable after the
effectiveness under the Securities Act of any post-effective amendment filed
pursuant to Section 2(d)(i); provided, that if such Notice is delivered during a
Deferral Period, Xxxx Atlantic and FSI shall so inform the Holder delivering
such Notice and shall take the actions set forth in clauses (i), (ii) and (iii)
above upon expiration of the Deferral Period in accordance with Section 3(i).
Xxxx Atlantic and FSI shall be under no
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obligation to name any Holder that is not a Notice Holder as a selling
securityholder in any Registration Statement or related Prospectus.
(e) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if (i) the Initial Shelf Registration
Statement has not been filed on or prior to the Filing Deadline Date, (ii) the
Initial Shelf Registration Statement has not become effective under the
Securities Act on or prior to the Effectiveness Deadline Date, (iii) either of
Xxxx Atlantic or FSI have failed to perform their obligations set forth in
Section 2(d) within the time period required other than as a result of a failure
of the Holders to meet their obligations under Section 2(d) and/or Section 4,
(iv) any post-effective amendment to the Shelf Registration Statement filed
pursuant to Section 2(d)(i) has not become effective under the Securities Act on
or prior to the Amendment Effectiveness Deadline Date or (v) the aggregate
duration of Deferral Periods in any period exceeds the number of days permitted
in respect of such period pursuant to Section 3(i) hereof (each of the events of
a type described in any of the foregoing clauses (i) through (v) are
individually referred to herein as an "EVENT," and the Filing Deadline Date in
the case of clause (i), the Effectiveness Deadline Date in the case of clause
(ii), the date by which Xxxx Atlantic and FSI are required to perform their
obligations set forth in Section 2(d) in the case of clause (iii), the Amendment
Effectiveness Deadline Date in the case of clause (iv) and the date on which the
aggregate duration of Deferral Periods in any period exceeds the number of days
permitted by Section 3(i) hereof in the case of clause (v) being referred to
herein as an "EVENT DATE"). Events shall be deemed to continue until the "EVENT
TERMINATION DATE," which shall be the following dates with respect to the
respective types of Events: the date the Initial Registration Statement is filed
in the case of an Event of the type described in clause (i), the date the
Initial Registration Statement becomes effective under the Securities Act in the
case of an Event of the type described in clause (ii), the date Xxxx Atlantic
and FSI perform their obligations set forth in Section 2(d) in the case of an
Event of the type described in clause (iii), the date the relevant
post-effective amendment to the Shelf Registration Statement becomes effective
under the Securities Act in the case of an Event of the type described in clause
(iv) and termination of the Deferral Period that caused the limit on the
aggregate duration of Deferral Periods in a period set forth in Section 3(i) to
be exceeded in the case of the commencement of an Event of the type described in
clause (v).
Accordingly, commencing on (and including) any Event Date and ending on
(but excluding) the next date on which there are no Events that have occurred
and are continuing (a "DAMAGES ACCRUAL PERIOD"), Xxxx Atlantic and FSI jointly
and severally agree to pay, as liquidated damages and not as a penalty, an
amount (the "LIQUIDATED DAMAGES AMOUNT"), payable on the Damages Payment Dates,
prior to the redemption or exchange thereof, to Record Holders (as set forth in
the succeeding paragraph) of the Notes accruing, for each portion of such
Damages Accrual Period beginning on and including a Damages Payment Date (or, in
respect of the first such portion, the Event Date) (except that with respect to
the Event described in clause (i) above, the Company will have forty-five days
to cure, and provided that in the event the Company does not cure by day forty
five, the Liquidated Damages Amount will be payable
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retroactive to the Event Date, but will otherwise increase and accrue as set
forth below) and ending on but excluding the next subsequent Damages Payment
Date, in the form of an increase of .25% on the interest rate on the Notes each
90 day period that such additional interest continues to accrue; PROVIDED that
such additional interest shall at no time exceed 1% per annum; PROVIDED FURTHER,
that in the case of a Damages Accrual Period that is in effect solely as a
result of an Event of the type described in clause (iii) or (iv) of the
preceding paragraph, such Liquidated Damages Amount shall be paid only to the
Holders (as set forth in the succeeding paragraph) that have delivered Notice
that caused Xxxx Atlantic and FSI to incur the obligations set forth in Section
2(d) the non-performance of which is the basis of such Event. Notwithstanding
the foregoing, no Liquidated Damages Amounts shall accrue as to any Registrable
Security from and after the earlier of (x) the date such security is no longer a
Registrable Security and (y) expiration of the Effectiveness Period. The rate of
accrual of the Liquidated Damages Amount with respect to any period shall not
exceed the rate provided for in this paragraph notwithstanding the occurrence of
multiple concurrent Events.
Xxxx Atlantic and FSI shall pay on each Damages Payment Date that
portion of the Liquidated Damages Amount payable pursuant to this Section 2(e)
in respect of any Damages Accrual Period that has accrued from and including the
next preceding Damages Payment Date during such Damages Accrual Period (or, in
respect of the first such portion, the Event Date with respect to such Damages
Accrual Period) to but excluding such Damages Payment Date on any Note to the
Record Holders thereof; PROVIDED, that any Liquidated Damages Amount accrued
with respect to any Note or portion thereof called for redemption on a
redemption date or exchanged for Underlying Ordinary Shares on a date prior to
the Damages Payment Date, shall, in any such event, be paid instead to the
holder who submitted such Note or portion thereof for redemption or exchange on
the applicable redemption date or exchange date, as the case may be, on such
date (or promptly following such date, in the case of an exchange); PROVIDED
FURTHER, THAT, in the case of an Event of the type described in clause (iii) or
(iv) of the first paragraph of this Section 2(e), such Liquidated Damages Amount
shall be paid only to the Holders entitled thereto pursuant to such first
paragraph by check mailed to the address set forth in the Notice delivered by
such Holder; and PROVIDED FURTHER that, notwithstanding anything to the contrary
contained herein, in no event shall any Holder be entitled to any Liquidated
Damages Amount with respect to a Note for any Damages Accrual Period when such
Holder would not be entitled to interest on such Note during such Damage Accrual
Period. The Trustee shall be entitled, on behalf of Registered Holders of Notes,
to seek any available remedy for the enforcement of this Agreement, including
for the payment of such Liquidated Damages Amount. Notwithstanding the
foregoing, the parties agree that the sole damages payable for a violation of
the terms of this Agreement with respect to which liquidated damages are
expressly provided shall be such liquidated damages. Nothing shall preclude a
Notice Holder or Holder of Registrable Securities from pursuing or obtaining
specific performance or other equitable relief with respect to this Agreement.
All of Xxxx Atlantic's and FSI's obligations set forth in this Section
2(e) that are outstanding with respect to any Registrable Security at the time
such security ceases to be a
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Registrable Security shall survive until such time as all such obligations with
respect to such security have been satisfied in full (notwithstanding
termination of this Agreement pursuant to Section 8(k)).
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 of Registrable Securities by reason of the failure of the
Shelf Registration Statement to be filed or declared effective or available
(absolutely or as a practical matter) for effecting resales of Registrable
Securities in accordance with the provisions hereof
SECTION 3. REGISTRATION PROCEDURES. In connection with the registration
obligations of Xxxx Atlantic and FSI under Section 2 hereof, Xxxx Atlantic and
FSI shall:
(a) Before filing any Registration Statement or Prospectus or any
amendments or supplements thereto with the SEC, furnish to the Managers copies
of all such documents proposed to be filed and use their best efforts to reflect
in each such document when so filed with the SEC such comments as the Managers
reasonably shall propose within two (2) Business Days of the delivery of such
copies to the Managers.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period
specified in Section 2; except during a Deferral Period, cause the related
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then in
force) under the Securities Act; and, except during a Deferral Period, use its
best efforts to comply with the provisions of the Securities Act applicable to
it with respect to the disposition of all securities covered by, such
Registration Statement during the applicable period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
Registration Statement as so amended or such Prospectus as so supplemented;
PROVIDED that during a Deferral Period Xxxx Atlantic and FSI will continue to
comply with the provisions of the Rule 424 or any other filing or delivery
requirement under the Securities Act with respect to any dispositions of
Registrable Securities pursuant to the Registration Statement that occurred
prior to such Deferral Period.
(c) As promptly as reasonably practicable give notice to the Notice
Holders and the Managers (i) when any Prospectus, Prospectus supplement
Registration Statement or post-effective amendment to a Registration Statement
has been filed with the SEC and, with respect to a Registration Statement. or
any post-effective amendment, when the same has become effective, (ii) of any
request, following the effectiveness of the Initial Shelf Registration Statement
under the Securities Act, by the SEC or any other federal or state governmental
authority for amendments or supplements to any Registration Statement or related
Prospectus, (iii) of the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the effectiveness of any
Registration Statement or the initiation or threatening of any proceedings for
that purpose, (iv) of the receipt by Xxxx Atlantic or FSI of any notification
with
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respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (v) of the
occurrence of (but not the nature of or details concerning) a Material Event and
(vi) of the determination by Xxxx Atlantic or FSI that a post-effective
amendment to a Registration Statement would be appropriate, which notice may, at
the discretion of Xxxx Atlantic or FSI (or as required pursuant to Section
3(i)), state that it constitutes a Deferral Notice, in which event the
provisions of Section 3(i) shall apply. Notwithstanding the foregoing, such
notice requirement will not apply during a Deferral Period with respect to
clauses (i), (ii), (v) and (vi) above.
(d) Use their reasonable best efforts, except during a Deferral Period,
to obtain the withdrawal of any order suspending the effectiveness of a
Registration Statement or the lifting of any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction in which they have been qualified for sale, in either case as
promptly as reasonably practicable.
(e) If reasonably requested by the Manager or any Notice Holder, as
promptly as reasonably practicable, except during a Deferral Period, incorporate
in a Prospectus supplement or post-effective amendment to a Registration
Statement such information as the Managers or such Notice Holder shall, on the
basis of an opinion of nationally recognized counsel experienced in such
matters, determine to be required to be included therein by applicable law and
make any required filings of such Prospectus supplement or such post-effective
amendment; PROVIDED, that Xxxx Atlantic and FSI shall not be required to take
any actions under this Section 3(e) that are not, in the reasonable opinion of
counsel for Xxxx Atlantic or FSI, as the case may be, in compliance with
applicable law.
(f) As promptly as reasonably practicable furnish to each Notice Holder
and each Manager, without charge, at least one (1) conformed copy of the
Registration Statement and any amendment thereto, including financial statements
but excluding schedules, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits (unless reasonably requested in writing by
such Notice Holder or the Managers, as the case may be).
(g) Except during a Deferral Period, deliver to each Notice Holder in
connection with any sale of Registrable Securities pursuant to a Registration
Statement, without charge, as many copies of the Prospectus or Prospectuses
relating to such Registrable Securities (including each preliminary prospectus)
and any amendment or supplement thereto as such Notice Holder may reasonably
request; and Xxxx Atlantic and FSI hereby consent to the use of such Prospectus
or each amendment or supplement-thereto by each Notice Holder in connection with
any offering and sale of the Registrable Securities covered by such Prospectus
or any amendment or supplement thereto in the manner set forth therein.
(h) As promptly as reasonably practicable register or qualify or
cooperate with the Notice Holders in connection with the registration or
qualification (or exemption from such
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registration or qualification) of such Registrable Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the United
States as any Notice Holder reasonably requests in writing (which request may be
included in the Notice); keep each such registration or qualification (or
exemption therefrom) effective during the Effectiveness Period in connection
with such Notice Holder's offer and sale of Registrable Securities pursuant to
such registration or qualification (or exemption therefrom) and do any and all
other acts or things reasonably necessary or advisable to enable the disposition
in such jurisdictions of such Registrable Securities in the manner set forth in
the relevant Registration Statement and the related Prospectus; PROVIDED, that
neither Xxxx Atlantic nor FSI will 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 Agreement or (ii) take any action
that would subject it to general service of process in suits or to taxation in
any such jurisdiction where it is not then so subject.
(i) Upon (A) the issuance by the SEC of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section 8(d)
or 8(e) of the Securities Act, (B) subject to the next sentence, the occurrence
of any event or the existence of any fact (a "MATERIAL EVENT") as a result of
which any Registration Statement shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or any Prospectus
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or (C) the occurrence or existence of any pending corporate
development that, in the sole and absolute discretion of Xxxx Atlantic makes it
appropriate to suspend the availability of the Shelf Registration Statement and
the related Prospectus, (i) as promptly as reasonably practicable prepare and
file, if necessary pursuant to applicable law, a post-effective prepare and
file, if necessary pursuant to applicable law, a post-effective amendment to
such Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
that would be incorporated by reference into such Registration Statement and
Prospectus so that such Registration Statement does not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
such Prospectus does not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Registration Statement, subject to the next
sentence, use their best efforts to cause it to become effective as promptly as
is reasonably practicable, and (ii) give notice to the Notice Holders that the
availability of the Shelf Registration Statement is suspended (a "DEFERRAL
NOTICE") and, upon receipt of any Deferral Notice, each Notice Holder shall not
sell any Registrable Securities pursuant to the Registration Statement until
such Notice Holder's receipt of copies of the supplemented or amended Prospectus
provided for in clause (i) above, or until it is advised in writing by Xxxx
Atlantic that the Prospectus may be used, and has received copies of any
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additional or supplemental filings that are incorporated or deemed incorporated
by reference in such Prospectus. Xxxx Atlantic and FSI will use their best
efforts to ensure that the use of the Prospectus may be resumed (x) in the case
of clause (A) above, as promptly as is reasonably practicable except during a
Deferral Period resulting from clause (y) or (z) of this sentence, (y) in the
case of clause (B) above, as soon as, in the sole judgment of Xxxx Atlantic
public disclosure of such Material Event would not be prejudicial to or contrary
to the interests of Xxxx Atlantic or FSI or, if necessary to avoid unreasonable
burden or expense, as soon as practicable thereafter and (z) in the case of
clause (C) above, as soon as, in the sole and absolute discretion of Xxxx
Atlantic such suspension is no longer appropriate. Xxxx Atlantic and FSI shall
be entitled to exercise their right under this Section 3(i) to suspend the
availability of the Shelf Registration Statement or any Prospectus, without
incurring any obligation to pay liquidated damages pursuant to Section 3(e), for
a period, (the "DEFERRAL PERIOD") not to exceed 90 days (whether or not
consecutive) in any twelve (12) month period.
(j) Upon not less than ten (10) Business Days prior written notice
describing with reasonable particularity the requested information, if requested
in connection with a disposition of Registrable Securities pursuant to a
Registration Statement, make reasonably available for inspection (but not
copying) during normal business hours by the Notice Holders of such Registrable
Securities and any broker-dealers, attorneys and accountants retained by such
Notice Holders, all relevant material financial and other records, pertinent
corporate documents and properties of Xxxx Atlantic and its subsidiaries
(including FSI)(with the determination of what is relevant and material to be
determined in Xxxx Atlantic's reasonable discretion), and cause the executive
officers, directors and designated employees of Xxxx Atlantic and its
subsidiaries (including FSI) to make reasonably available for inspection all
relevant material information, as determined in Xxxx Atlantic's reasonable
discretion, reasonably requested by such Notice Holders or any such
broker-dealers, attorneys or accountants in connection with such disposition, in
each case, solely to the extent disclosure of such records or information is
customary for similar "due diligence" examinations; PROVIDED, that any
information that is designated by Xxxx Atlantic, in good faith, as confidential
at the time of delivery of such information shall be kept strictly confidential
by such Notice Holders and any such broker-dealer, attorney or accountant and
not used for any purpose other than the completion of a "due diligence"
examination and shall not be disclosed to any other person or to any individual
within an organization other than those directly involved with the proposed
disposition, unless such disclosure is made in connection with a court
proceeding or is required by law, or such information becomes available to the
public generally or through a third party without an accompanying obligation of
confidentiality, and each person or organization involved in such examination
shall enter into a confidentiality agreement to such effect; and PROVIDED
FURTHER, that the foregoing inspection and information gathering shall, to the
greatest extent possible, be coordinated on behalf of the Notice Holders and the
other parties entitled thereto by the counsel referred to in Section 5.
(k) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders earning statements (which need
not be audited) satisfying the provisions of Section I I (a) of the Securities
Act and Rule 158 thereunder (or any similar rule
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promulgated under the, Securities Act) no later than 45 days after the end of
any 12-month period (or 90 days after the end of any 12-month period if such
period is a fiscal year) commencing on the first day of the first fiscal quarter
of Xxxx Atlantic after the effective date of a Registration Statement, which
statements shall cover said 12-month periods.
(l) Unless all Registrable Securities shall be held in book-entry form,
cooperate with each Notice Holder to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold pursuant
to a Registration Statement, which certificates shall not bear any restrictive
legends (unless such legends are necessary in the reasonable opinion of counsel
to Xxxx Atlantic or FSI to comply with applicable law). and cause such
Registrable Securities to be in such denominations and registered in such names
as such Notice Holder may request.
(m) Provide a CUSIP number for all Registrable Securities not later
than the effective date of the Initial Shelf Registration Statement and provide
the Trustee with printed certificates for the Registrable Securities that are in
a form eligible for deposit with DTC, Euroclear and Cedel.
(n) Provide such information as may be required for any filings made
with the National Association of Securities Dealers, Inc. (other than
information relating to underwriters or similar persons or selling
Stockholders).
(o) Upon (i) the filing of the Initial Registration Statement and (ii)
the effectiveness of the Initial Registration Statement, announce the same, in
each case by release to Reuters Economic Services and Bloomberg Business News.
SECTION 4. HOLDER'S OBLIGATIONS. Each Holder agrees, by acquisition of
the Registrable Securities, that no Holder of Registrable Securities shall be
entitled to sell any of such Registrable Securities pursuant to a Registration
Statement or to receive a Prospectus relating thereto, unless such Holder has
furnished Xxxx Atlantic and FSI with notice as required pursuant to Section 2(d)
hereof (including the information required to be included in such Notice) and
the information set forth in the next sentence. Each Notice Holder agrees
promptly to furnish to Xxxx Atlantic and FSI all information required to be
disclosed in order to make the information previously furnished to Xxxx Atlantic
and FSI by such Notice Holder not misleading and any other information regarding
such Notice Holder and the distribution of such Registrable Securities as Xxxx
Atlantic and FSI may from time to time reasonably request. Any sale of any
Registrable Securities by any Holder shall constitute a representation and
warranty by such Holder that the information relating to such Holder and its
plan of distribution is as set forth in the Prospectus delivered by such Holder
in connection with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact relating to or
provided by such Holder or its plan of distribution and that such Prospectus
does not as of the time of such sale omit to state any material fact relating to
or provided by such
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Holder or its plan of distribution necessary to make the statements in such
Prospectus, in the light of the circumstances under which they were made, not
misleading.
SECTION 5. REGISTRATION EXPENSES. Xxxx Atlantic shall bear all fees and
expenses incurred in connection with the performance by Xxxx Atlantic and FSI of
their obligations under Sections 2 and 3 whether or not any of the Registration
Statements become effective. Such fees and expenses shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (x) with respect to filings required to be made with the
National Association of Securities Dealers, Inc. and (y) of compliance with
federal and state securities or Blue Sky laws (including, without limitation,
reasonable fees and disbursements of the counsel specified in the next sentence
in connection with Blue Sky qualifications of the Registrable Securities under
the laws of such jurisdictions as the Notice Holders of a majority of the
Registrable Securities being sold pursuant to a Registration Statement may
designate), (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with DTC, Euroclear and Cedel), (iii) duplication expenses relating to copies of
any Registration Statement or Prospectus delivered to any Holders hereunder,
(iv) fees and disbursements of counsel for Xxxx Atlantic and FSI in connection
with the Shelf Registration Statement, (v) reasonable fees and disbursements of
the Trustee and its counsel and (vi) Securities Act liability insurance obtained
by Xxxx Atlantic in its sole discretion. In addition, Xxxx Atlantic shall bear
or reimburse the Notice Holders for the reasonable fees and disbursements of one
firm of legal counsel for the Holders, which shall be a nationally recognized
law firm experienced in securities law matters designated by the Managers, with
the written consent of Xxxx Atlantic (which shall not be unreasonably withheld).
In addition, Xxxx Atlantic shall pay the internal expenses of Xxxx Atlantic and
FSI (including, without limitation, all salaries and expenses of officers and
employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange on which similar securities of
Xxxx Atlantic are then listed and the fees and expenses of any person, including
special experts, retained by Xxxx Atlantic or FSI. Notwithstanding the
provisions of this Section 5, each seller of Registrable Securities shall pay
all registration expenses to the extent Xxxx Atlantic or Xxxx FSI is prohibited
by applicable Blue Sky laws from paying for or on behalf of such seller of
Registrable Securities.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION BY XXXX ATLANTIC AND FSI. Xxxx Atlantic and FSI
shall indemnify and hold harmless each Notice Holder and each person, if any,
who controls any Notice Holder (within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act) from and against all losses,
liabilities, claims, damages and expenses (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (collectively, "LOSSES"), arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus or in any amendment
or supplement thereto or in any preliminary prospectus, or arising out of or
based upon any omission or alleged omission to state therein a
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material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such Losses arise out of or are based
upon the information relating to any Holder furnished to Xxxx Atlantic and FSI
in writing by such Holder expressly for use therein; PROVIDED, that the
indemnification contained in this paragraph shall not inure to the benefit of
any Holder of Registrable Securities (or to the benefit of any person
controlling such Holder) on account of any such Losses arising out of or based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any preliminary prospectus if either (A) (i) such Holder failed
to send or deliver a copy of the Prospectus with or prior to the delivery of
written confirmation of the sale by such Holder to the person asserting the
claim from which such Losses arise and (ii) the Prospectus would have corrected
such untrue statement or alleged untrue statement or such omission or alleged
omission, or (B) (x) such untrue statement or alleged untrue statement, omission
or alleged omission is corrected in an amendment or supplement to the Prospectus
and (y) having previously been furnished by or on behalf of Xxxx Atlantic and
FSI with copies of the Prospectus as so amended or supplemented, such Holder
thereafter fails to deliver such Prospectus as so amended or supplemented, with
or prior to the delivery of written confirmation of the sale of a Registrable
Security to the person asserting the claim from which such Losses arise.
(b) INDEMNIFICATION BY HOLDER OF REGISTRABLE SECURITIES. Each Holder
agrees severally and not jointly to indemnify and hold harmless Xxxx Atlantic
and FSI and their respective directors and officers, and each person, if any,
who controls Xxxx Atlantic or FSI (within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act), from and against all
losses arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, to the extent, but only to the extent,
that such untrue statement or omission is contained in any information relating
to such Holder so furnished in writing by such Holder to Xxxx Atlantic and FSI
expressly for use in such Registration Statement or Prospectus. In no event
shall the liability of any selling Holder of Registrable Securities hereunder be
greater in amount than the dollar amount of the proceeds received by such Holder
upon the sale of the Registrable Securities pursuant to the Shelf Registration
Statement giving rise to such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. 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 of the two
preceding paragraphs, such person (the "INDEMNIFIED PARTY") shall promptly
notify the person against whom such indemnity may be sought (the "INDEMNIFYING
PARTY") in writing 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
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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) t he 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 the fees and expenses of more than one separate firm (in addition
to any local counsel) for all indemnified parties, and that all such fees and
expenses shall be reimbursed as they are incurred. Such separate firm shall be
designated in writing by, in the case of parties indemnified pursuant to Section
6(a), the Holders of a majority of principal amount of Notes covered by the
Shelf Registration Statement held by Holders that are indemnified parties
pursuant to Section 6(a) and, in the case of parties indemnified pursuant to
Section 6(b), Xxxx Atlantic and FSI. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be 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 30 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, 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 includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) CONTRIBUTION. To the extent that the indemnification provided for
in this Section 6 is unavailable to an indemnified party under Section 6(a) or
6(b) hereof in respect of any Losses or is insufficient to hold such indemnified
party harmless, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
or parties on the one hand and the indemnified party or parties on the other
hand or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also 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, as well as any other relevant equitable considerations.
Benefits received by Xxxx Atlantic and FSI shall be deemed to be equal to the
total net proceeds from the initial placement pursuant to the Purchase
-15-
Agreement (before deducting expenses) of the Registrable Securities to which
such Losses relate. Benefits received by any Holder shall be deemed to be equal
to the value of receiving Registrable Securities that are registered under the
Securities Act. The relative fault of the Holders on the one hand and Xxxx
Atlantic and FSI on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Holders or by Xxxx Atlantic or FSI and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Holders' respective obligations to
contribute pursuant to this paragraph are several in proportion to the
respective number of Registrable Securities they have sold pursuant to a
Registration Statement, and not joint.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by PRO RATA
allocation or by any other method or allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the Losses
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding this Section 6(d), an
indemnifying party that is a selling Holder of Registrable Securities shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities sold by such indemnifying party and
distributed to the public were offered to the public exceeds the amount of any
damages that such indemnifying party 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 I I (o of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The indemnity, contribution and expense reimbursement obligations
of the parties hereunder shall be in addition to any liability any indemnifying
party may otherwise have hereunder, under the Purchase Agreement or otherwise.
(f) The indemnity and contribution provisions contained in this Section
6 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 Holder or any person controlling any Holder, or Xxxx Atlantic or FSI, or
Xxxx Atlantic's or FSI's officers or directors or any person controlling Xxxx
Atlantic or FSI and (iii) the sale of any Registrable Securities by any -Holder.
SECTION 7. INFORMATION REQUIREMENTS. (a) Xxxx Atlantic and FSI covenant
that, if at any time before the end of the Effectiveness Period, Xxxx Atlantic
is not subject to the reporting requirements of the Exchange Act, they will
cooperate with any Holder of Registrable Securities and take such further
reasonable action as any Holder of Registrable Securities may reasonably request
(including, without limitation, making such reasonable representations as any
such Holder may reasonably request), all to the extent required from time to
time to enable such
-16-
Holder to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule- 144, Rule 144A and
Regulation S under the Securities Act and customarily taken in connection with
sales pursuant to such exemptions. Upon the request of any Holder of Registrable
Securities, each of Xxxx Atlantic and FSI shall deliver to such Holder a written
statement as to whether it has complied with such filing requirements, unless
such a statement has been included in Xxxx Atlantic's or FSI's most recent
report required to be filed and filed pursuant to Section 13 or Section 15(d) of
Exchange Act. Notwithstanding the foregoing, nothing in this Section 7 shall be
deemed to require Xxxx Atlantic or FSI to register any of its securities under
any section of the Exchange Act.
SECTION 8. MISCELLANEOUS.
(a) NO CONFLICTING AGREEMENTS. Neither Xxxx Atlantic nor FSI has, as of
the date hereof, nor shall, on or after the date of this Agreement, enter into
any agreement with respect to its securities that conflicts with the rights
granted to the Holders of Registrable Securities in this Agreement. Each of Xxxx
Atlantic and FSI represents and warrants that the rights granted to the Holders
of Registrable Securities hereunder do not in any way conflict with the rights
granted to the Holders of Xxxx Atlantic's or FSI's securities under any other
agreements.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless Xxxx Atlantic and FSI have obtained the written consent of Holders
of a majority in principal amount of the Notes. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Registrable Securities
whose securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect the rights of other Holders of
Registrable Securities may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders pursuant to such Registration
Statement; PROVIDED, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier, by
courier guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
(x) if to a Holder of Registrable Securities, at the most
current address given by such Holder to Xxxx Atlantic and FSI
in notice or any amendment thereto;
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(y) if to Xxxx Atlantic or FSI, to:
Xxxx Atlantic Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, X.X. 00000
Attention: Treasurer
Telecopy No.: 000-000-0000
with a copy to the Vice President,
Assistant General Counsel and Secretary at such address
and
(z) if to the Managers, to:
SBC Warburg Dillon Read, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Syndicate Department
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) APPROVAL OF HOLDERS. Whenever the consent or approval of Holders of
a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by Xxxx Atlantic, FSI or their respective affiliates
(as such term is defined in Rule 405 under the Securities Act) (other than the
Managers or subsequent Holders-of Registrable Securities if such subsequent
Holders are deemed to be such affiliates solely by reason of their holdings of
such Registrable Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
(e) SUCCESSORS AND ASSIGNS. Any person who purchases any Registrable
Securities from the Managers shall be deemed, for purposes of this Agreement, to
be an assignee of the Managers. This Agreement shall inure to the benefit of and
be binding upon the successors and assigns of each of the parties and shall
inure to the benefit of and be binding upon each Holder of any Registrable
Securities.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterpart, each of which
when so executed shall be deemed to be original and all of which taken together
shall constitute one and the same agreement.
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(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
(i) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction, it being intended that all of the rights and privileges of the
parties shall be enforceable to the fullest extent permitted by law.
(j) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by Xxxx Atlantic and FSI with respect to the Registrable Securities.
Except as provided in the Purchase Agreement, there are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by Xxxx Atlantic and FSI
with respect to the Registrable Securities. This Agreement supersedes all prior
agreements and undertakings among the parties with respect to such registration
rights. No party hereto shall have any rights, duties or obligations other than
those specifically set forth in this Agreement.
(k) TERMINATION. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Sections 4, 5 or 6 hereof and the
obligations to make payments of and provide for liquidated damages under Section
2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
their terms.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXX ATLANTIC CORPORATION
By: /s/ Xxxxx X. Xxxx
-----------------------------
Name: Xxxxx X. Xxxx
Title: Vice President - Treasurer
XXXX ATLANTIC FINANCIAL
SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Treasurer
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Accepted as of the date first above written:
SWISS BANK CORPORATION, LONDON BRANCH
(on behalf of the Managers and for the benefit of the Holders)
By:
Name:
Title:
By:
------------------------------
Name:
Title:
