Exhibit 4.3
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BROKAT Infosystems Aktiengesellschaft
Euro 125,000,000 11 1/2% Senior Notes due 2010
Registration Rights Agreement
March 28, 2000
WestLB Panmure Limited,
as Initial Purchasers
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BROKAT Infosystems Aktiengesellschaft
Euro 125,000,000 11 1/2% Senior Notes due 2010
REGISTRATION RIGHTS AGREEMENT
March 28, 2000
This Registration Rights Agreement (this "Agreement") is made and
entered into as of March 28, 2000 by and among BROKAT Infosystems
Aktiengesellschaft, an Aktiengesellschaft organized under the laws of the
Federal Republic of Germany (the "Company"), and WestLB Panmure Limited (the
"Initial Purchaser"), which has agreed to purchase the Company's 11 1/2% Senior
Notes due 2010 (the "Senior Notes""), subject to the terms and conditions set
forth in the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement dated March
21, 2000 (the "Purchase Agreement"), by and among the Company and the Initial
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Purchaser. In order to induce the Initial Purchaser to purchase the Senior
Notes, the Company has agreed to provide the registration rights and other
agreements set forth in this Agreement. The execution and delivery of this
Agreement is a condition to the obligations of the Initial Purchaser to purchase
Senior Notes under the Purchase Agreement. The Senior Notes are to be issued
under an indenture to be dated as of the date hereof among the Company and The
Bank of New York, as trustee. Capitalized terms used herein and not otherwise
defined shall have the meaning assigned to them in the Indenture (as defined
below).
The parties hereby agree as follows:
Section 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Affiliate: As defined in Rule 144 of the Securities Act.
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Agreement: As defined in the preamble.
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Broker-Dealer: Any broker or dealer registered under the Exchange Act.
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Business Day: Any day that is not a Saturday, Sunday or a day on which
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banks are required or permitted to be closed in the State of New York.
Closing Date : The date hereof.
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Company: As defined in the preamble.
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Consummate: An Exchange Offer shall be deemed "Consummated" for
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purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the Exchange Offer and the New Senior Notes to be issued
in the Exchange Offer, (b) the maintenance of such Exchange Offer Registration
Statement continuously effective and the keeping of the Exchange Offer open for
a period not less than the period required pursuant to Section 3(b) hereof and
(c) the delivery by the Company to the registrar of New Senior Notes in the same
aggregate principal amount as the aggregate principal amount of Senior Notes
tendered by holders thereof pursuant to the Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
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Effectiveness Deadline: As defined in Section 3(a) hereof.
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Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exchange Offer: An offer by the Company registered under the Securities
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Act to exchange any and all outstanding Senior Notes for a like aggregate
principal amount of New Senior Notes.
Exchange Offer Registration Statement: The Registration Statement
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relating to the Exchange Offer, including the related Prospectus.
Filing Deadline: As defined in Section 3(a) hereof.
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Holders: As defined in Section 2(b) hereof.
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Indenture: The indenture referred to in the preamble and any other
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indenture governing Notes which is identical in all material respects to the
indenture referred to in the preamble, other than such changes to any such
indenture as are necessary to comply with the TIA, and which, in either case,
has been qualified under the TIA.
Initial Purchaser: As defined in the preamble.
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Liquidated Damages: As defined in Section 5 hereof.
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New Senior Notes: The 11 1/2% new Senior Notes due 2010 that are
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identical to the Senior Notes, except that such New Senior Notes bear no legends
regarding transfer restrictions, issued pursuant to an Indenture in the Exchange
Offer or as contemplated by Sections 4 and 6 hereof.
Notes: The Senior Notes, the New Senior Notes and the Private Exchange
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Notes.
Participating Broker-Dealer: Any Broker-Dealer that (i) holds Notes
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that were acquired for its own account as a result of market-making activities
or other trading activities (other than Notes acquired directly from the Company
or any of its Affiliates) that intends to participate in the Exchange Offer or
(ii) holds New Senior Notes acquired in the Exchange Offer.
Private Exchange: As defined in Section 3(b) hereof.
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Private Exchange Notes: As defined in Section 3(b) hereof.
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Prospectus: The prospectus included in a Registration Statement at the
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time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Purchase Agreement: As defined in the preamble.
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Recommencement Date: As defined in Section 6(d) hereof.
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Registration Default: As defined in Section 5 hereof.
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Registration Statement: Any registration statement of the Company
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relating to (a) an offering of New Senior Notes pursuant to or following the
Consummation of an Exchange Offer or (b) the registration for resale of Notes
pursuant to the Shelf Registration Statement, in each case, (i) that is filed
pursuant to the provisions of this Agreement and (ii) including the Prospectus
included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
Rule 144: Rule 144 promulgated under the Securities Act.
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SEC: The Securities and Exchange Commission
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Securities Act: The Securities Act of 1933, as amended.
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Senior Notes: As defined in the preamble.
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Shelf Effectiveness Deadline: As defined in Section 4(a) hereof.
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Shelf Filing Deadline: As defined in Section 4(a) hereof.
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Shelf Registration Statement: As defined in Section 4(a) hereof.
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Suspension Notice: As defined in Section 6(d) hereof.
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TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
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77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each (a) Senior Note and, if issued,
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the Private Exchange Notes, until the earliest to occur of (i) the date on which
such Senior Note or Private Exchange Note, as the case may be, is exchanged in
the Exchange Offer for a New Senior Note which is entitled to be resold to the
public by the holder thereof without complying with the registration and
prospectus delivery requirements of the Securities Act, (ii) the date on which
such Senior Note or Private Exchange Note, as the case may be, has been disposed
of in accordance with a Shelf Registration Statement and the purchaser thereof
has been issued a New Senior Note which is entitled to be resold to the public
by the holder thereof without complying with the registration and prospectus
delivery requirements of the Securities Act, or (iii) the date on which such
Senior Note or Private Exchange Note, as the case may be, is distributed to the
public pursuant to Rule 144 under the Securities Act and the purchaser thereof
has been issued a New Senior Note which is entitled to be resold to the public
by the holder thereof without complying with the registration and prospectus
delivery requirements of the Securities Act, and (b) New Senior Note held by a
Participating Broker-Dealer until the date on which such New Senior Note is
disposed of by such Participating Broker-Dealer pursuant to a Registration
Statement, including the delivery of the Prospectus contained therein, and such
New Senior Note is entitled to be resold to the public by the holder thereof
without complying with the registration and prospectus delivery requirements of
the Securities Act.
Trustee: The trustee under an Indenture.
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Section 2. SECURITIES SUBJECT TO AGREEMENT
(a) The securities entitled to the benefits of this Agreement are the
Senior Notes, the New Senior Notes and the Private Exchange Notes until all of
such Notes shall cease to be Transfer Restricted Securities.
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(b) A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "Holder") whenever such Person beneficially owns such Transfer
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Restricted Securities.
Section 3. EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i) below have been
complied with), the Company shall (i) cause the Exchange Offer Registration
Statement to be filed with the SEC as soon as practicable after the Closing
Date, but in no event later than 60 days after the Closing Date (such 60th day
being the "Filing Deadline"), (ii) use its best efforts to cause such Exchange
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Offer Registration Statement to become effective at the earliest possible time,
but in no event later than 150 days after the Closing Date (such 150th day being
the "Effectiveness Deadline"), (iii) in connection with the foregoing, (A) file
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all pre-effective amendments to such Exchange Offer Registration Statement as
may be necessary in order to cause it to become effective, (B) file, if
applicable, a post-effective amendment to such Exchange Offer Registration
Statement pursuant to Rule 430A under the Securities Act and (C) cause all
necessary filings, if any, in connection with the registration and qualification
of the New Senior Notes to be made under the Blue Sky laws of such jurisdictions
as are necessary to permit Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Exchange Offer Registration Statement, commence and
Consummate the Exchange Offer. The Exchange Offer shall be on the appropriate
form permitting (i) registration of the New Senior Notes to be offered in
exchange for the Senior Notes that are Transfer Restricted Securities and (ii)
resales of New Senior Notes by Participating Broker-Dealers as contemplated by
Section 3 (d) below.
(b) If, prior to consummation of the Exchange Offer, the Initial
Purchaser holds any Senior Notes acquired by them and having the status of an
unsold allotment in the initial distribution, the Company upon the request of
the Initial Purchaser shall, simultaneously with the delivery of the New Senior
Notes in the Exchange Offer, issue and deliver to the Initial Purchaser in
exchange (the "Private Exchange") for Senior Notes held by the Initial Purchaser
a like principal amount of debt securities (the "Private Exchange Notes") that
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are identical to the New Senior Notes, except that such Private Exchange Notes
shall bear appropriate legends regarding transfer restrictions. The Private
Exchange Notes shall (i) be issued under the same Indenture, (ii) be of the same
class and series, and (iii) bear the same CUSIP number, as the New Senior Notes.
(c) The Company shall cause the Exchange Offer Registration Statement
to be effective continuously, and shall keep the Exchange Offer open for a
period of not less than the minimum period required under applicable federal and
state securities laws to Consummate the Exchange Offer; provided, however, that
in no event shall such period be less than 20 Business Days. The Company shall
cause the Exchange Offer to
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comply with all applicable securities laws. No securities other than the New
Senior Notes shall be included in the Exchange Offer Registration Statement. The
Company shall use its best efforts to cause the Exchange Offer to be Consummated
on the earliest practicable date after the Exchange Offer Registration Statement
has become effective, but in no event later than 30 Business Days thereafter
(such 30th day being the "Consummation Deadline").
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(d) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Participating Broker-Dealer may exchange Transfer Restricted
Securities held by it pursuant to the Exchange Offer. The Company acknowledges,
and such "Plan of Distribution" shall also indicate that under certain
circumstances (i) a Participating Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Securities Act, (ii) in such event a
Participating Broker-Dealer would be required to deliver a prospectus meeting
the requirements of the Securities Act in connection with any resales of the
securities received by such Participating Broker-Dealer in the Exchange Offer,
and (iii) such prospectus delivery requirement may be satisfied by the delivery
by such Participating Broker-Dealer of the prospectus contained in the Exchange
Offer Registration Statement. Such "Plan of Distribution" section shall also
contain all other information with respect to such resales by Participating
Broker-Dealers that the SEC may require in order to permit such resales, but
shall not name any such Participating Broker-Dealer or disclose the amount of
securities held by any such Participating Broker-Dealer except to the extent
specifically required by the SEC as a result of a change in policy after the
date of this Agreement. The Company shall keep the Exchange Offer Registration
Statement continuously effective, supplemented, amended and current as required
by the provisions of paragraphs (a) and (c) of Section 6 below to the extent
necessary to ensure that it is available for resales of Notes, acquired by
Participating Broker-Dealers, and shall ensure that the Exchange Offer
Registration Statement conforms with all applicable requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the SEC
as announced from time to time, for a period of one year from the Consummation
Deadline. The Company shall provide sufficient copies of the latest version of
any such prospectus to Participating Broker-Dealers promptly upon request, and
in no event later than one day following any such request, at any time during
such period in order to facilitate such resales.
Section 4. SHELF REGISTRATION
(a) If (i) the Exchange Offer is not permitted by applicable law (after
the Company have complied with the procedures set forth in Section 6(a) below),
(ii) the Exchange Offer is not consummated within 210 days of the Closing Date,
(iii) if any holder of Notes shall notify the Company within 20 Business Days
following the Consummation Deadline that (A) such holder was prohibited by law
or SEC policy
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from participating in the Exchange Offer or (B) such holder may not resell the
New Senior Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
holder or (C) such holder is a Broker-Dealer and holds Senior Notes acquired
directly from the Company or any of its Affiliates, or (iv) the holder of
Private Exchange Notes so requests, then the Company shall:
(x) cause to be filed, on or prior to 60 days after the
earlier of (i) (A) the date on which the Company determines that the
Exchange Offer Registration Statement cannot be filed as a result of
clause (a)(i) above or (B) the Closing Date, and (ii) the date on which
the Company receives the notice specified in clause (a)(ii) above (such
earlier date, the "Shelf Filing Deadline"), a shelf registration
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statement pursuant to Rule 415 under the Securities Act (which may be
an amendment to the Exchange Offer Registration Statement (the "Shelf
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Registration Statement")), relating to all Transfer Restricted
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Securities, and
(y) shall use its best efforts to cause such Shelf
Registration Statement to become effective on or prior to 90 days after
the Shelf Filing Deadline for the Shelf Registration Statement (such
90th day, the "Shelf Effectiveness Deadline").
(b) To the extent necessary to ensure that the Shelf Registration
Statement is available for sales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 4(a) and the other Notes
required to be registered therein pursuant to Section 6(b)(ii) hereof, the
Company shall keep any Shelf Registration Statement required by this Section
4(a) continuously effective, supplemented, amended and current as required by
and subject to the provisions of Sections 6(b) and (c) hereof and responsive to
and in conformity with the applicable requirements of this Agreement, the
Securities Act, the Exchange Act and the policies, rules and regulations of the
SEC as announced from time to time, for a period of at least two years (as
extended pursuant to Section 6(c)(i)) following the Closing Date, or such
shorter period as will terminate when all Transfer Restricted Securities covered
by such Shelf Registration Statement have ceased to constitute Transfer
Restricted Securities.
(c) No holder of Notes may include any of its Notes in any Shelf
Registration Statement pursuant to this Agreement unless and until such holder
furnishes to the Company in writing, within 20 days after receipt of a written
request therefor, the information specified in Item 507 or 508 of Regulation
S-K, as applicable, of the Securities Act for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus included therein.
No holder of Notes shall be entitled to Liquidated Damages pursuant to Section 5
hereof unless and until such
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holder shall have used its reasonable best efforts to furnish all such
information as provided in the preceding sentence. Each holder of Notes included
in any Shelf Registration Statement pursuant to this Agreement agrees promptly
to furnish additional information required to be disclosed in order to make the
information previously furnished to the Company by such holder not materially
misleading.
Section 5. LIQUIDATED DAMAGES
(a) The parties hereto acknowledge and agree that the holders of Notes
will suffer material damages if the Company fails to fulfill its obligations
under Section 3 or Section 4 hereof and that it would not be feasible to
ascertain the extent of such damages with precision. Accordingly, the Company
hereby agrees to pay liquidated damages ("Liquidated Damages") if (i) any
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Registration Statement required by this Agreement is not filed with the SEC on
or prior to the applicable Filing Deadline or Shelf Filing Deadline, as
applicable, (ii) any such Registration Statement has not been declared effective
by the SEC on or prior to the applicable Effectiveness Deadline or the Shelf
Effectiveness Deadline, as applicable, (iii) the Exchange Offer has not been
Consummated on or prior to the Consummation Deadline or (iv) any Registration
Statement required by this Agreement is filed and declared effective but shall
thereafter cease to be effective or fail to be usable for its intended purpose
without being succeeded immediately by a post-effective amendment to such
Registration Statement that cures such failure and that is itself declared
effective immediately (each such event referred to in clauses (i) through (iv),
a "Registration Default"). Liquidated Damages shall accrue and be payable on the
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principal amount of outstanding Notes from the date of such Registration Default
at a rate of 0.25% per annum for the first 90-day period immediately following
the occurrence of such Registration Default. The amount of Liquidated Damages
shall increase by an additional 0.25% per annum with respect to each subsequent
90-day period until all Registration Defaults have been cured, up to a maximum
amount of Liquidated Damages of 2.0% per annum; provided, that the Company shall
in no event be required to pay Liquidated Damages for more than one Registration
Default at any given time. Notwithstanding anything to the contrary set forth
herein, (1) upon filing of the Exchange Offer Registration Statement or the
Shelf Registration Statement, in the case of (i) above, (2) upon the
effectiveness of the Exchange Offer Registration Statement or the Shelf
Registration Statement, in the case of (ii) above, (3) upon Consummation of the
Exchange Offer, in the case of (iii) above, or (4) upon the filing of a
post-effective amendment to the Registration Statement or an additional
Registration Statement that causes the Exchange Offer Registration Statement or
the Shelf Registration Statement to again be declared effective or made usable
in the case of (iv) above, the Liquidated Damages payable as a result of such
clause (i), (ii), (iii) or (iv), as applicable, shall cease to accrue upon the
cure of all such Registration Defaults.
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(b) All accrued Liquidated Damages shall be paid in the manner provided
for the payment of interest in the Indenture, on each Interest Payment Date, as
more fully set forth in the Indenture and the Notes. All of the obligations of
the Company to pay Liquidated Damages hereunder with respect to any securities
shall survive until such time as such obligations shall have been discharged and
satisfied in full, notwithstanding the fact that any such securities shall at
any time cease to be Transfer Restricted Securities hereunder.
Section 6. REGISTRATION PROCEDURES
(a) In connection with the Exchange Offer, the Company shall (x) comply
with all applicable provisions of Section 6(c) below, (y) use its best efforts
to effect such exchange and to permit the resale of New Senior Notes by
Participating Broker- Dealers and (z) comply with all of the following
provisions:
(i) If, following the date hereof there has been announced a
change in SEC policy with respect to exchange offers such as the
Exchange Offer, that in the reasonable opinion of counsel to the
Company raises a substantial question as to whether the Exchange Offer
is permitted by applicable federal law, the Company hereby agrees to
seek a no-action letter or other favorable decision from the SEC
allowing the Company to Consummate an Exchange Offer for such Transfer
Restricted Securities in the manner contemplated hereby. The Company
hereby agrees to pursue the issuance of such a decision to the SEC
staff level. In connection with the foregoing, the Company hereby
agrees to take all such other actions as may be requested by the SEC or
otherwise required in connection with the issuance of such decision,
including without limitation (A) participating in telephonic
conferences with the SEC, (B) delivering to the SEC staff an analysis
prepared by counsel to the Company setting forth the legal bases, if
any, upon which such counsel has concluded that such an Exchange Offer
should be permitted and (C) diligently pursuing a resolution (which
need not be favorable) by the SEC staff.
(ii) As a condition to its participation in the Exchange
Offer, each holder of Notes, including, without limitation, any Holder
who is a Broker- Dealer shall furnish, upon the request of the Company,
prior to the Consummation of the Exchange Offer, a written
representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement)
to the effect that (A) it is not an Affiliate of the Company, (B) it is
not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a
distribution of the New Senior Notes to be issued in the Exchange Offer
and (C) it is acquiring the New Senior Notes in its ordinary course of
business. As a condition to its participation in the Exchange Offer,
each holder using the
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Exchange Offer to participate in a distribution of the New Senior Notes
acknowledges and agrees that, if the resales are of New Senior Notes
obtained by such holder in exchange for Senior Notes acquired directly
from the Company or an Affiliate thereof, it (1) could not, under SEC
policy as in effect on the date of this Agreement, rely on the position
of the SEC enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June
5, 1991) and Exxon Capital Holdings Corporation (available May 13,
1988), as interpreted in the SEC's letter to Shearman & Sterling dated
July 2, 1993, and similar no- action letters (including, if applicable,
any no-action letter obtained pursuant to clause (i) above), and (2)
must comply with the registration and prospectus delivery requirements
of the Securities Act in connection with a secondary resale transaction
and that such a secondary resale transaction must be covered by an
effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company shall provide a supplemental letter
to the SEC (A) stating that the Company is registering the Exchange
Offer in reliance on the position of the SEC enunciated in Exxon
Capital Holdings Corporation (available May 13, 1988), Xxxxxx Xxxxxxx &
Co. Inc. (available June 5, 1991), as interpreted in the SEC's letter
to Shearman & Sterling dated July 2, 1993, and, if applicable, any
no-action letter obtained pursuant to clause (i) above, (B) including a
representation that the Company has not entered into any arrangement or
understanding with any person to distribute the New Senior Notes to be
received in the Exchange Offer and that, to the best of the Company's
information and belief, each holder participating in the Exchange Offer
is acquiring the New Senior Notes in its ordinary course of business
and has no arrangement or understanding with any Person to participate
in the distribution of the New Senior Notes received in the Exchange
Offer and (C) including any other undertaking or representation
required by the SEC in connection with any no action letter obtained
pursuant to clause (i) above or otherwise.
(b) In connection with the Shelf Registration Statement, the
Company shall:
(i) comply with all the provisions of Section 6(c) below and
use its best efforts to effect such registration to permit the sale of
the Notes in accordance with the intended method or methods of
distribution thereof (as indicated in the information furnished to the
Company pursuant to Section 4(b) hereof), and pursuant thereto the
Company will prepare and file with the SEC a Registration Statement
relating to the registration on any appropriate form under the
Securities Act, which form shall be available for the sale of the Notes
in
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accordance with the intended method or methods of distribution thereof
within the time periods and otherwise in accordance with the provisions
hereof, and
(ii) issue, upon the request of any holder or purchaser of
Senior Notes covered by any Shelf Registration Statement contemplated
by this Agreement, New Senior Notes having an aggregate principal
amount equal to the aggregate principal amount of Senior Notes sold
pursuant to such Shelf Registration Statement and surrendered to the
Company for cancellation; the Company shall, if necessary, register New
Senior Notes on the Shelf Registration Statement for this purpose and
issue the New Senior Notes to the purchaser(s) of securities subject to
the Shelf Registration Statement in the names as such purchaser(s)
shall designate.
(c) In connection with any Registration Statement and any related
Prospectus required by this Agreement, the Company shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements
for the period specified in Section 3 or 4 of this Agreement, as
applicable; upon the occurrence of any event that would cause any such
Registration Statement or Prospectus (A) to contain an untrue statement
of material fact or omit to state any material fact necessary to make
the statements therein not misleading or (B) not to be effective and
usable for resale of Notes during the period required by this
Agreement, the Company shall file promptly an appropriate amendment to
such Registration Statement curing such defect, and, if SEC review is
required, use its best efforts to cause such amendment to be declared
effective as soon as practicable;
(ii) prepare and file with the SEC such amendments and post-
effective amendments to the applicable Registration Statement as may be
necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as the case may
be; cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be duly filed pursuant to Rule
424 under the Securities Act, and to comply fully with Rules 424, 430A
and 462, as applicable, under the Securities Act in a timely manner;
and comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended
method or methods of distribution by the sellers thereof set forth in
such Registration Statement or supplement to the Prospectus;
(iii) advise each holder promptly and, if requested by such
holder, confirm such advice in writing, (A) when the Prospectus or any
Prospectus
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supplement or post-effective amendment has been filed, and, with
respect to any applicable Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any
request by the SEC for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the SEC of any
stop order suspending the effectiveness of the Registration Statement
under the Securities Act or of the suspension by any state securities
SEC of the qualification of the Notes for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the happening
of any event that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement
thereto or any document incorporated by reference therein untrue, or
that requires the making of any additions to or changes in the
Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes
in the Prospectus in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; if at
any time the SEC shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws,
the Company shall use its best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Notes, the
Prospectus will not contain an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(v) (A) in the case of an Exchange Offer, furnish counsel for
any Participating Broker-Dealer, if any, that has given at least five
Business Days' prior written or oral notification to the Company that
it will participate in the Exchange Offer and (B) in the case of a
Shelf Registration Statement, furnish counsel for the holders of Notes,
before filing with the SEC, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements to any
such Registration Statement or Prospectus (including all documents
incorporated by reference in such Registration Statement at the time of
or after the initial filing of such Registration Statement), which
documents will be subject to the review of such holders and
Participating Broker-Dealer, if
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any, for a period of at least five Business Days, and the Company will
not file any such Registration Statement or Prospectus or any amendment
or supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) to which a
selling holder of Notes covered by such Registration Statement (in the
case of a Shelf Registration Statement) or any Participating
Broker-Dealer (in the case of an Exchange Offer Registration
Statement), shall reasonably object. A Participating Broker-Dealer or
selling holder shall be deemed to have reasonably objected to such
filing if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains a material
misstatement or omission;
(vi) (A) in the case of an Exchange Offer, furnish counsel for
any Participating Broker-Dealer that has given at least five Business
Days' prior written or oral notification to the Company that it will
participate in the Exchange Offer and (B) in the case of a Shelf
Registration Statement, furnish counsel for the holders of Notes, prior
to the filing of any document that is to be incorporated by reference
into a Registration Statement or Prospectus included therein, copies of
such document, and, in each case, make the Company's representatives
available for discussion of such document and other customary due
diligence matters, and include such information in such document prior
to the filing thereof as such holders, any Participating Broker Dealers
or their respective counsel, reasonably may request;
(vii) make available at reasonable times for inspection by (A)
in the case of an Exchange Offer, any Participating Broker-Dealer, and
any attorney or accountant retained by any such Participating
Broker-Dealer and (B) in the case of a Shelf Registration Statement,
furnish holders, and any attorney or accountant retained by such
holders, all material financial and other records, pertinent corporate
documents and properties of the Company and cause the Company's
officers, directors and employees to supply all material information
reasonably requested by any such Participating Broker-Dealer, holder,
attorney or accountant in connection with such Registration Statement
subsequent to the filing thereof and prior to its effectiveness, in
each case, subject to executing a confidentiality undertaking in
customary form and with respect to confidential information and/or
proprietary information of the Company;
(viii) (A) in the case of an Exchange Offer, if requested by
any Participating Broker-Dealer, or their counsel, or (B) in the case
of a Shelf Registration Statement, if requested by any holder or their
counsel, promptly incorporate in any Registration Statement or
Prospectus included therein, pursuant to a supplement or post-effective
amendment if necessary, such material information as such Participating
Broker-Dealers, holders or their respective counsel may reasonably
request to have included therein, including,
13
without limitation, information relating to the "Plan of Distribution"
of the Notes, information with respect to the principal amount of Notes
being sold, the purchase price being paid therefor and any other terms
of the offering of the Notes to be sold in such offering; and make all
required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the
matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(ix) furnish (A) in the case of an Exchange Offer, to any
Participating Broker-Dealer, and any underwriter(s), if such
Participating Broker-Dealer or underwriter(s) have given prior written
or oral notification to the Company that they will participate in the
Exchange Offer, or (B) in the case of a Shelf Registration Statement,
to each selling holder, without charge, at least one copy of the
Registration Statement, as first filed with the SEC, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits (without documents incorporated therein by
reference or exhibits thereto, unless requested);
(x) deliver to each selling holder, each Participating
Broker-Dealer and any underwriter(s), without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request;
the Company hereby consents to the use (in accordance with law) of the
Prospectus and any amendment or supplement thereto by each of the
selling holders, each of the Participating Broker-Dealers, and each of
the other underwriter(s), if any, in connection with the offering and
the sale of the Notes covered by the Prospectus or any amendment or
supplement thereto;
(xi) in the case of a Shelf Registration Statement and, to the
extent that the Company is required to maintain an effective Exchange
Offer Registration Statement for any Participating Broker-Dealer, enter
into such agreements (including, without limitation, underwriting
agreements), and make such representations and warranties, and take all
such other actions in connection therewith in order to expedite or
facilitate the disposition of the Notes pursuant to any Registration
Statement contemplated by this Agreement, all to such extent as may be
reasonably requested by any holder of Notes or Participating
Broker-Dealer in connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement; and whether or
not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration, the Company shall:
(A) upon request of any holder, furnish (or in
the case of paragraphs (2) and (3), use its best efforts to cause to
be furnished) to
14
each holder, upon Consummation of the Exchange Offer or upon
the effectiveness of the Shelf Registration Statement, as the
case may be, and to each Participating Broker-Dealer upon five
Business Days' prior written or oral notice to the Company
that it is participating in the Exchange Offer, but in no case
prior to the Consummation of the Exchange Offer:
(1) a certificate, dated such date, signed
on behalf of the Company by (x) the President or any
Vice President and (y) a principal financial or
accounting officer of the Company, confirming, as of
the date thereof, the matters set forth in Sections
9(d) and 9(o) of the Purchase Agreement and such
other similar matters as such holders may reasonably
request;
(2) opinions, dated the date of Consummation
of the Exchange Offer or the date of effectiveness of
the Shelf Registration Statement, as the case may be,
of counsel for the Company covering matters similar
to those set forth in paragraph (e) of Section 9 of
the Purchase Agreement and such other matters as such
holder may reasonably request, and in any event
including a statement to the effect that such counsel
has participated in conferences with officers and
other representatives of the Company, representatives
of the independent public accountants for the Company
and have considered the matters required to be stated
therein and the statements contained therein,
although such counsel has not independently verified
the accuracy, completeness or fairness of such
statements; and that such counsel advises that, on
the basis of the foregoing (relying as to materiality
to the extent such counsel deems appropriate upon the
statements of officers and other representatives of
the Company, no facts came to such counsel's
attention that caused such counsel to believe that
the applicable Registration Statement, at the time
such Registration Statement or any post-effective
amendment thereto became effective and, in the case
of the Exchange Offer Registration Statement, as of
the date of Consummation of the Exchange Offer,
contained an untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading, or that the Prospectus
contained in
15
such Registration Statement as of its date and, in
the case of the opinion dated the date of
Consummation of the Exchange Offer, as of the date of
Consummation, contained an untrue statement of a
material fact or omitted to state a material fact
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not misleading. Without limiting the foregoing,
such counsel may state further that such counsel
assumes no responsibility for, and has not
independently verified, the accuracy, completeness or
fairness of the financial statements, notes and
schedules and other financial data included in any
Registration Statement contemplated by this Agreement
or the related Prospectus; and
(3) a customary comfort letter, dated the
date of Consummation of the Exchange Offer, or as of
the date of effectiveness of the Shelf Registration
Statement, as the case may be, from the Company's
independent accountants, in the customary form and
covering matters of the type customarily covered in
comfort letters to underwriters in connection with
underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to
Section 9(g) of the Purchase Agreement;
(B) set forth in full or incorporate by reference in
the underwriting agreement, if any, indemnification provisions
and procedures no less favorable to the holders, any
Participating Broker-Dealer or any underwriter than the
comparable provisions hereof;
(C) deliver such other documents and certificates as
may be reasonably requested by the selling holders or any
Participating Broker- Dealer to evidence compliance with the
matters covered in clause (A) above and with any customary
conditions contained in any agreement entered into by the
Company pursuant to this clause (xi); and
(D) if at any time during, in the case of an Exchange
Offer, the one-year period contemplated by Section 3(d)
hereof, or, in the case of a Shelf Registration, the two-year
period contemplated by Section 4(b) hereof, the
representations and warranties of the Company contemplated in
clause (A)(1) above cease to be true and correct, so advise
any
16
Participating Broker-Dealer and each selling holder promptly
and, if requested by such Persons, shall confirm such advice
in writing;
(xii) prior to any public offering of Notes, cooperate with
the selling holders or any Participating Broker-Dealer and their
counsel in connection with the registration and qualification of the
Notes under the securities or Blue Sky laws of such jurisdictions as
the selling holders or any Participating Broker- Dealer may request and
do any and all other acts or things necessary or advisable to enable
the disposition in such jurisdictions of the Notes covered by the
applicable Registration Statement; provided, however, that the Company
shall not be required to register or qualify as a foreign corporation
where it is not now so qualified or to take any action that would
subject it to the service of process in suits or to taxation, other
than as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(xiii) in connection with any sale of Notes that will result
in such Notes no longer being Transfer Restricted Securities, cooperate
with the holders to facilitate the timely preparation and delivery of
certificates representing Notes to be sold and not bearing any
restrictive legends;
(xiv) use its best efforts to cause the disposition of the
Notes covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof to consummate the
disposition of such Notes, subject to the proviso contained in clause
(xii) above;
(xv) provide CUSIP, ISIN and Common Code numbers for all Notes
not later than the effective date of a Registration Statement covering
such Notes and provide the Trustee with printed certificates for the
Notes which are in a form eligible for deposit with the Common
Depositary under the Indenture;
(xvi) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make generally
available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be
audited) covering a twelve-month period beginning after the effective
date of the Registration Statement (as such term is defined in
paragraph (c) of Rule 158 under the Securities Act);
(xvii) cause each Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate with
the Trustee and the holders to effect such changes to any Indenture as
may be required for such Indenture to be
17
so qualified in accordance with the terms of the TIA; and execute and
use its best efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable such Indenture to
be so qualified in a timely manner;
(xviii) cooperate and assist in any filings required to be
made with the National Association of Securities Dealers, Inc. and in
the performance of any due diligence investigation by any Participating
Broker-Dealer or other underwriter (including any "qualified
independent underwriter") that is required to be retained in accordance
with the rules and regulations of the National Association of
Securities Dealers, Inc.;
(xix) cause all Notes covered by the Registration Statement to
be listed on each securities exchange on which similar securities
issued by the Company are then listed if requested by the holders of a
majority in aggregate principal amount of Senior Notes or the managing
underwriter(s), if any; and
(xx) provide promptly to each Holder and any affiliated market
maker thereof, upon request, each document filed with the SEC pursuant
to the requirements of Section 13 or 15(d) of the Exchange Act.
(d) Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of the notice referred to in Section 6(c)(iii)(C) or any
notice from the Company of the existence of any fact of the kind described in
Section 6(c)(iii)(D) hereof (in each case, a "Suspension Notice"), such Holder
will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until (i) such Holder has
received copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(iv) hereof, or (ii) such Holder is advised in writing by the
Company that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by reference in
the Prospectus (in each case, the "Recommencement Date"). Each Holder receiving
a Suspension Notice hereby agrees that it will either (i) destroy any
Prospectuses, other than permanent file copies, then in such Holder's possession
which have been replaced by the Company with more recently dated Prospectuses or
(ii) deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Holder's possession of the Prospectus
covering such Transfer Restricted Securities that was current at the time of
receipt of the Suspension Notice. The time period regarding the effectiveness of
such Registration Statement set forth in Section 3 or 4 hereof, as applicable,
shall be extended by a number of days equal to the number of days in the period
from and including the date of delivery of the Suspension Notice to the date of
delivery of the Recommencement Date.
18
Section 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses; (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the New Senior
Notes to be issued in the Exchange Offer and printing of Prospectuses),
messenger and delivery services and telephone; (iv) all fees and disbursements
of counsel for the Company and the holders of Notes, respectively; (v) the
Luxembourg Stock Exchange application and filing fees in connection with listing
the New Senior Notes; and (vi) all fees and disbursements of independent
certified public accountants of the Company (including the expenses of any
special audit and comfort letters required by or incident to such performance).
(b) The Company will, in any event, bear its internal expenses,
including, without limitation, all salaries and expenses of their officers and
employees performing legal or accounting duties, the expenses of any annual or
periodic audit or other accounting review and the fees and expenses of any
person, including special experts or consultants, retained by the Company.
(c) In connection with any Registration Statement required by this
Agreement, including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement, the Company will reimburse the
Initial Purchaser and the holders of Notes tendered in the Exchange Offer and/or
offered or sold under the Exchange Offer Registration Statement or the Shelf
Registration Statement, as applicable, for the fees and disbursements of not
more than one counsel, who shall be Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx,
unless another firm shall be chosen by the holders of a majority in principal
amount of the Notes for whose benefit such Registration Statement is being
prepared.
Section 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each holder of
Notes, its directors, officers and each Person, if any, who controls such holder
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act), from and against any and all losses, claims, damages,
liabilities, judgments, (including without limitation, any reasonable legal or
other expenses incurred in connection with investigating or defending any
matter, including any action that could give rise to any such losses, claims,
damages, liabilities or judgments) caused by any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement,
preliminary prospectus or Prospectus (or any amendment or supplement thereto)
provided by the Company to any prospective seller or purchaser of Notes, or
caused by
19
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or judgments are
caused by any such untrue statement or omission or alleged untrue statement or
omission made therein in reliance upon and in conformity with information
relating to any such holder furnished to the Company in writing by or on behalf
of any such holder expressly for use therein.
(b) Each holder of Notes agrees, severally and not jointly, to
indemnify and hold harmless the Company, and each other holder of Notes, and
their respective directors and officers, and each person, if any, who controls
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) the Company and each other holder of Notes to the same extent as
the foregoing indemnity from the Company set forth in Section (a) above, 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. In no event shall any holder of Notes, its directors,
officers or any Person who controls such holder be liable or responsible for any
amount in excess of the amount by which the total amount received by such holder
with respect to its sale of Notes pursuant to a Registration Statement exceeds
(i) the amount paid by such holder for such Notes and (ii) the amount of any
damages that such holder, its directors, officers or any Person who controls
such holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying person") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), a holder of Notes shall not be required to
assume the defense of such action pursuant to this Section 8(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
the holder). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to
20
it which are different from or additional to those available to the indemnifying
party (in which case the indemnifying party shall not have the right to assume
the defense of such action on behalf of the indemnified party). In any such
case, the indemnifying party shall not, in connection with any one action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) for all indemnified parties and all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by a majority of the holders of Notes, in the case of the parties
indemnified pursuant to Section 8(a), and by the Company, in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall indemnify and
hold harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written consent
if the settlement is entered into more than 20 Business Days after the
indemnifying party shall have received a request from the indemnified party for
reimbursement for the fees and expenses of counsel (in any case where such fees
and expenses are at the expense of the indemnifying party) and, prior to the
date of such settlement, the indemnifying party shall have failed to comply with
such reimbursement request. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement or compromise
of, or consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this Section
8 is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the holders of Notes, on the other hand, from their sale of Notes or
(ii) if the allocation provided by clause 8(d)(i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause 8(d)(i) above but also the relative fault of the
Company, on the one hand, and of the holder, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
holder, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
21
omission or alleged omission to state a material fact relates to information
supplied by the Company, on the one hand, or by the holder, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and
judgments referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of Section 8(a), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company and each holder of any Note agree that it would not be just
and equitable if contribution pursuant to this Section 8(d) were determined by
pro rata allocation (even if such holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of 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,
claims, damages, liabilities or judgments 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 matter, including any
action that could have given rise to such losses, claims, damages, liabilities
or judgments. Notwithstanding the provisions of this Section 8, no holder of any
Note, its directors, its officers or any person, if any, who controls such
holder shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the total received by such holder with respect to the
sale of Notes pursuant to a Registration Statement exceeds (i) the amount paid
by such holder for such Notes and (ii) the amount of any damages which 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. The holders' obligations to contribute pursuant to
this Section 8(d) are several in proportion to the respective principal amount
of Notes held by each holder hereunder. The holders' obligations to contribute
pursuant to this Section 8(d) are not joint.
Section 9. RULE 144A AND RULE 144
Each of the Company agrees with each holder of Notes, for so long as
any Notes remain outstanding (i) whether or not either of the Company is subject
to Section 13 or 15(d) of the Exchange Act, to make available, upon request of
any holder, to such holder or beneficial owner of Notes in connection with any
sale thereof and any prospective purchaser of Notes designated by such holder or
beneficial owner, the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of Notes pursuant to Rule 144A, and
(ii) during any period in which either of the Company is subject to Section 13
or 15(d) of the Exchange Act, to make all filings
22
required thereby in a timely manner in order to permit resales of Notes pursuant
to Rule 144.
Section 10. UNDERWRITTEN REGISTRATIONS
(a) No holder of Notes may participate in any underwritten offering
under a Registration Statement hereunder unless such holder (i) agrees to sell
such holder's Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (ii)
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such underwriting arrangements.
(b) The holders of Notes covered by the Shelf Registration Statement
who desire to do so may sell such Notes in an underwritten offering. In any such
offering, each investment banking firm that will manage and/or participate in
the offering will be selected, subject to the consent of the Company, which
consent shall not be unreasonably withheld, by the holders of a majority in
aggregate principal amount of the Notes included in such offering.
Section 11. MISCELLANEOUS
(a) The Company acknowledges and agrees that (i) any failure by the
Company to comply with its obligations hereunder may result in material
irreparable injury to the Initial Purchaser or the holders of Notes for which
there is no adequate remedy at law; (ii) it will not be possible to measure
damages for such injuries precisely; and (iii) in the event of any such failure,
the Initial Purchaser or any holder of Notes may obtain such relief as may be
required specifically to enforce the Company's obligations hereunder, including
without limitation Sections 3, 4 and 6 hereof. The Company further agree to
waive the defense in any action for specific performance that a remedy at law
would be adequate.
(b) The Company will not, on or after the date of this Agreement, enter
into any agreement with respect to its securities that is inconsistent with the
rights granted under this Agreement or otherwise conflicts with the provisions
hereof. Except as set forth on Schedule A hereto, neither the Company has
previously entered into any agreement granting any registration rights with
respect to its securities to any person. The rights granted hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of any of the Company's securities under any agreement in effect on the
date hereof.
(c) The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions
hereof may
23
not be given unless (i) in the case of Section 5 hereof and this Section
11(c)(i), the Company has obtained the written consent of holders of all
outstanding Notes entitled to Liquidated Damages under Section 5 hereof and (ii)
in the case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose Transfer Restricted Securities are being tendered pursuant to
the Exchange Offer, and that does not affect directly or indirectly the rights
of other holders whose Notes are not being tendered pursuant to such Exchange
Offer, may be given by the Holders of a majority of the outstanding principal
amount of Transfer Restricted Securities subject to such Exchange Offer.
(d) The holders of outstanding Notes (excluding Notes held by the
Company or its Affiliates) shall be third party beneficiaries to the agreements
made hereunder between the Company, on the one hand, and the Initial Purchaser,
on the other hand, and shall have the right to enforce such agreements directly
to the extent they may deem such enforcement necessary or advisable to protect
their rights or the rights of holders of outstanding Notes hereunder.
(e) All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to such
Registrar; and
(ii) if to the Company:
BROKAT Infosystems Aktiengesellschaft,
Xxxxxxxxxxxxxxxx 0, X-00000,
Xxxxxxxxx, Xxxxxxx
Telecopier No.: x00 000 000 00 000
Attention: General Counsel
24
With a copy to:
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: 212/424-8500
Attention: Lars Bang-Xxxxxx
All such notices and communications shall be deemed to have been duly
given: (i) at the time delivered by hand, if personally delivered; (ii) five
Business Days after being deposited in the mail, postage prepaid, if mailed;
(iii) when receipt acknowledged, if telecopied; and (iv) on the next Business
Day, if timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties, including, without limitation
and without the need for an express assignment, subsequent holders of
outstanding Notes (excluding Notes held by the Company or its Affiliates);
provided, that nothing herein shall be deemed to permit any assignment, transfer
or other disposition of Transfer Restricted Securities in violation of the terms
hereof, of the Purchase Agreement or the Indenture. If any transferee of any
holder shall acquire Notes in any manner, whether by operation of law or
otherwise, such Notes shall be held subject to all of the terms of this
Agreement, and by taking and holding such Notes 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.
(g) 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) The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(i) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT
OF LAW RULES THEREOF.
25
(j) 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.
(k) This Agreement is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to the subject matter hereof.
26
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
BROKAT Infosystems Aktiengesellschaft
By: /s/ XXXXXXX XXXXXXX
_________________________________
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
By: /s/ XXXXX XXXXXXXXXXXXX
_______________________________
Name: Xxxxx Xxxxxxxxxxxxx
Title: Executive Vice President
27
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written by WestLB Panmure Limited, as Initial Purchaser.
WESTLB PANMURE LIMITED
By: /s/ XXXX HODERIN
_______________________________
Name: Xxxx Hoderin
Title: Chief Executive Officer
By: /s/ XXXXX XXXXXXXX
_______________________________
Name: Xxxxx Xxxxxxxx
Title: Compliance Director &
Company Secretary
28
Schedule A
Other Registration Rights Agreements
NONE
