Exhibit 4.1
Lockheed Xxxxxx Corporation
Floating Rate Convertible Senior Debentures due 2033
Registration Rights Agreement
August 13, 2003
Citigroup Global Markets Inc.
Xxxxxxx, Sachs & Co. and
X.X. Xxxxxx Securities Inc.
As representatives of the several Purchasers
named in Schedule I to the Purchase Agreement
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Lockheed Xxxxxx Corporation, a Maryland corporation (the "Company"),
proposes to issue and sell to the Purchasers (as defined herein) upon the terms
set forth in the Purchase Agreement (as defined herein) its Floating Rate
Convertible Senior Debentures due 2033 (the "Securities"). As an inducement to
the Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Purchasers thereunder, the Company agrees
with the Purchasers for the benefit of Holders (as defined herein) from time to
time of the Registrable Securities (as defined herein) as follows:
1. Definitions.
(a) Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Purchase Agreement. As used in this Agreement,
the following defined terms shall have the following meanings:
"Additional Interest" has the meaning assigned thereto in Section 7(a)
hereof.
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Closing Date" means the First Time of Delivery as defined in the
Purchase Agreement.
1
"Commission" means the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"DTC" means The Depository Trust Company.
"Effective Failure" has the meaning assigned thereto in Section 7(b)
hereof.
"Effectiveness Period" has the meaning assigned thereto in Section
2(b)(i) hereof.
"Effective Time" means the time at which the Commission declares the
Shelf Registration Statement effective or at which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" has the meaning assigned thereto in Section 3(a)(iii)
hereof.
"Exchange Act" means the United States Securities Exchange Act of 1934,
as amended.
"Holder" means any person that is the record owner of Registrable
Securities (and includes any person that has a beneficial interest in any
Registrable Security in book-entry form).
"Indenture" means the Indenture, dated as of August 13, 2003, between
the Company and The Bank of New York, as amended and supplemented from time to
time in accordance with its terms.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering,
if any, conducted pursuant to Section 6 hereof.
"NASD Rules" means the Rules of the National Association of Securities
Dealers, Inc., as amended from time to time.
"Notice and Questionnaire" means a Selling Securityholder Notice and
Questionnaire substantially in the form of Annex A to the Offering Memorandum
dated August 7, 2003 relating to the offering of the Securities.
The term "person" means an individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
"Prospectus" means the prospectus (including, without limitation, any
preliminary prospectus, any final prospectus and any prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act)
included in the Shelf Registration Statement, as amended or supplemented by any
prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Securities covered by the Shelf Registration Statement and by
all other amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by the Company under the Exchange Act and incorporated
by reference therein.
"Purchase Agreement" means the purchase agreement, dated as of August
7, 2003 between the Purchasers and the Company relating to the Securities.
2
"Purchasers" means the Purchasers named in Schedule I to the Purchase
Agreement.
"Registrable Securities" means all or any portion of the Securities
issued from time to time under the Indenture in registered form and the shares
of Stock issuable upon conversion of such Securities; provided, however, that a
security ceases to be a Registrable Security when it is no longer a Restricted
Security.
"Registration Default" has the meaning assigned thereto in Section 7(a)
hereof.
"Restricted Security" means any Security or share of Stock issuable
upon conversion thereof, except any such Security or share of Stock that (i) has
been effectively registered under the Securities Act and sold in a manner
contemplated by the Shelf Registration Statement, (ii) has been transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or is transferable pursuant to paragraph (k) of such Rule 144 (or any
successor provision thereto) or (iii) has otherwise been transferred and a new
Security or share of Stock not subject to transfer restrictions under the
Securities Act has been delivered by or on behalf of the Company in accordance
with Section 2.05 of the Indenture.
"Rules and Regulations" means the published rules and regulations of
the Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Shelf Registration" means a registration effected pursuant to Section
2 hereof.
"Shelf Registration Statement" means a "shelf" registration statement
filed under the Securities Act providing for the registration of, and the sale
on a continuous or delayed basis by the Holders of, all of the Registrable
Securities pursuant to Rule 415 under the Securities Act and/or any similar rule
that may be adopted by the Commission, filed by the Company pursuant to the
provisions of Section 2 of this Agreement, including the Prospectus contained
therein, any amendments and supplements to such registration statement,
including post-effective amendments, and all exhibits and all material
incorporated by reference in such registration statement.
"Stock" means the Company's common stock, par value $1.00 per share.
"Trust Indenture Act" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
as the same shall be amended from time to time.
The term "underwriter" means any underwriter of Registrable Securities
in connection with an offering thereof under a Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a percentage of
the "principal amount" of Registrable Securities or to a percentage of
Registrable Securities, Stock shall be treated as representing the principal
amount of Securities that was surrendered for conversion or exchange in order to
receive such number of shares of Stock.
2. Shelf Registration.
3
(a) The Company shall, no later than 90 calendar days following the
Closing Date, file with the Commission a Shelf Registration Statement relating
to the offer and sale of the Registrable Securities by the Holders from time to
time in accordance with the methods of distribution elected by such Holders and
set forth in such Shelf Registration Statement and, thereafter, shall use its
reasonable best efforts to cause such Shelf Registration Statement to be
declared effective under the Securities Act no later than 180 calendar days
following the Closing Date; provided, however, that the Company may, upon
written notice to all Holders, postpone having the Shelf Registration Statement
declared effective for a reasonable period not to exceed 90 days if the Company
possesses material non-public information, the disclosure of which would have a
material adverse effect on the Company and its subsidiaries taken as a whole;
provided, further, however, that no Holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement or to use the
Prospectus forming a part thereof for resales of Registrable Securities unless
such Holder is an Electing Holder.
(b) The Company shall use its reasonable best efforts:
(i) to keep the Shelf Registration Statement continuously
effective under the Securities Act in order to permit the Prospectus
forming a part thereof to be usable by Holders until the earlier of (1)
the sale of all Registrable Securities registered under the Shelf
Registration Statement and (2) the expiration of the holding period
with respect to Registrable Securities under Rule 144(k) under the
Securities Act (the period from the Effective Time until the earlier of
(1) and (2) above, the "Effectiveness Period"); and
(ii) after the Effective Time of the Shelf Registration Statement
as promptly as practicable following the request of any Holder of
Registrable Securities that is not then an Electing Holder, to take any
action reasonably necessary to enable such Holder to use the Prospectus
forming a part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to identify such
Holder as a selling securityholder in the Shelf Registration Statement;
provided, however, that nothing in this subparagraph shall relieve such
Holder of the obligation to return a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(a)(ii)
hereof.
The Company shall be deemed not to have used its reasonable best efforts to keep
the Shelf Registration Statement effective during the requisite period if the
Company voluntarily takes any action that would result in Holders of Registrable
Securities covered thereby not being able to offer and sell any of such
Registrable Securities during that period, unless such action is (A) required by
applicable law and the Company thereafter promptly complies with the
requirements of paragraph 3(j) below or (B) permitted pursuant to Section 2(c)
below.
(c) The Company may suspend the use of the Prospectus for a period not
to exceed an aggregate of 90 days in any 12-month period if the Board of
Directors, the Chief Executive Officer, the Chief Operating Officer or the Chief
Financial Officer of the Company shall have determined in good faith that
because of valid business reasons (not including avoidance of the Company's
obligations hereunder), including the acquisition or divestiture of assets, a
merger, consolidation, share exchange or other business combination (including
pending discussions concerning a transaction of the foregoing types), pending
corporate developments and similar events, it is in the best interests of the
Company to suspend such use, and prior to or contemporaneous with suspending
such use the Company provides the Holders with written
4
notice of such suspension, which notice shall not specify the nature of the
event giving rise to such suspension.
3. Registration Procedures. In connection with the Shelf
Registration Statement, the following provisions shall apply:
(a) (i) Not less than 30 calendar days prior to the Effective Time of
the Shelf Registration Statement, the Company shall mail the Notice and
Questionnaire to the Holders of Registrable Securities along with notice of the
fact that the Company has filed or intends to file the Shelf Registration
Statement with the Commission. No Holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement as of the Effective
Time, and no Holder shall be entitled to use the Prospectus forming a part
thereof for resales of Registrable Securities at any time, unless such Holder
has returned a completed and signed Notice and Questionnaire to the Company at
least five Business Days prior to the Effective Time; provided, however, that
Holders of Registrable Securities shall have at least 28 calendar days from the
date on which the Notice and Questionnaire is first mailed to such Holders to
return a completed and signed Notice and Questionnaire to the Company.
(ii) After the Effective Time of the Shelf Registration
Statement, the Company shall, upon the request of any Holder of
Registrable Securities that is not then an Electing Holder, promptly
send a Notice and Questionnaire to such Holder. The Company shall not
be required to take any action to name such Holder as a selling
securityholder in the Shelf Registration Statement or to enable such
Holder to use the Prospectus forming a part thereof for resales of
Registrable Securities until such Holder has returned a completed and
signed Notice and Questionnaire to the Company.
(iii) The term "Electing Holder" shall mean any Holder of
Registrable Securities that has returned a completed and signed Notice
and Questionnaire to the Company in accordance with Section 3(a)(i) or
3(a)(ii) hereof.
(b) The Company shall furnish to each Electing Holder, prior to the
Effective Time, a copy of the Shelf Registration Statement initially filed with
the Commission, and shall furnish to such Holders, prior to the filing thereof
with the Commission, copies of each amendment thereto and each amendment or
supplement, if any, to the Prospectus included therein (other than amendments or
supplements adding other Holders as Electing Holders or otherwise affecting
other Holders only), and shall use its reasonable best efforts to reflect in
each such document, or in a subsequent filing, at the Effective Time or when so
filed with the Commission, as the case may be, such comments as such Holders and
their respective counsel reasonably may propose.
(c) The Company shall promptly take such action as may be necessary
so that (i) each of the Shelf Registration Statement and any amendment thereto
and the Prospectus forming a part thereof and any amendment or supplement
thereto (and each report or other document incorporated therein by reference in
each case) complies in all material respects with the Securities Act and the
Exchange Act and the respective rules and regulations thereunder, (ii) each of
the Shelf Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) each of the Prospectus forming a
part of the Shelf Registration Statement, and any amendment or supplement to
such Prospectus, does not at any time during the Effectiveness Period include an
untrue statement of a material fact or omit to state a material fact necessary
5
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(d) The Company shall promptly advise each Electing Holder, and shall
confirm such advice in writing if so requested by any such Electing Holder:
(i) when a Shelf Registration Statement and any amendment thereto
has been filed with the Commission and when a Shelf Registration
Statement or any post-effective amendment thereto has become effective,
in each case by making a public announcement thereof by release made to
Reuters Economic Services and Bloomberg Business News;
(ii) of any request by the Commission for amendments or supplements
to the Shelf Registration Statement or the Prospectus included therein
or for additional information;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Shelf Registration Statement or the initiation
of any proceedings for such purpose;
(iv) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the securities included in
the Shelf Registration Statement for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and
(v) subject to the limitations of Section 2(c) hereof, of the
occurrence of any event or the existence of any state of facts that
requires the making of any changes in the Shelf Registration Statement
or the Prospectus included therein so that, as of such date, such Shelf
Registration Statement and Prospectus do not contain an untrue
statement of a material fact and do not omit to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading (which advice shall be
accompanied by an instruction to such Holders to suspend the use of the
Prospectus until the requisite changes have been made).
(e) The Company shall use its reasonable best efforts to prevent the
issuance, and if issued to obtain the withdrawal at the earliest possible time,
of any stop order suspending the effectiveness of the Shelf Registration
Statement.
(f) The Company shall furnish to each Electing Holder, without charge,
at least one copy of the Shelf Registration Statement and all post-effective
amendments thereto, including financial statements and schedules.
(g) The Company shall, during the Effectiveness Period, deliver to each
Electing Holder, without charge, as many copies of the Prospectus (including
each preliminary Prospectus) included in the Shelf Registration Statement and
any amendment or supplement thereto (other than amendments or supplements adding
other Holders as Electing Holders or otherwise affecting other Holders only) as
such Electing Holder may reasonably request; and the Company consents (except
during the periods specified in Section 2(c) above or during the continuance of
any event or the existence of any state of facts described in Section 3(d)(v)
6
above) to the use of the Prospectus and any amendment or supplement thereto by
each of the Electing Holders in connection with the offering and sale of the
Registrable Securities covered by the Prospectus and any amendment or supplement
thereto during the Effectiveness Period.
(h) Prior to any offering of Registrable Securities pursuant to the
Shelf Registration Statement, the Company shall (i) register or qualify or
cooperate with the Electing Holders and their respective counsel in connection
with the 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 Electing Holder may reasonably request, (ii) keep such
registrations or qualifications in effect and comply with such laws so as to
permit the continuance of offers and sales in such jurisdictions for so long as
may be necessary to enable any Electing Holder or underwriter, if any, to
complete its distribution of Registrable Securities pursuant to the Shelf
Registration Statement, and (iii) take any and all other actions necessary or
advisable to enable the disposition in such jurisdictions of such Registrable
Securities; provided, however, that in no event shall the Company be obligated
to (A) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to so qualify but for this
Section 3(h) or (B) file any general consent to service of process in any
jurisdiction where it is not as of the date hereof so subject.
(i) Unless any Registrable Securities shall be in book-entry only form,
the Company shall cooperate with the Electing Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold pursuant to the Shelf Registration Statement, which certificates, if so
required by any securities exchange upon which any Registrable Securities are
listed, shall be penned, lithographed or engraved, or produced by any
combination of such methods, on steel engraved borders, and which certificates
shall be free of any restrictive legends and in such permitted denominations and
registered in such names as Electing Holders may request in connection with the
sale of Registrable Securities pursuant to the Shelf Registration Statement.
(j) Upon the occurrence of any event or the existence of any state of
facts contemplated by paragraph 3(d)(v) above, the Company shall promptly
prepare a post-effective amendment to any Shelf Registration Statement or an
amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to purchasers of the Registrable
Securities included therein, the Prospectus will not include an 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 light of the
circumstances under which they were made, not misleading. If the Company
notifies the Electing Holders of the occurrence of any event or the existence of
any state of facts contemplated by paragraph 3(d)(v) above, the Electing Holder
shall suspend use of the Prospectus until the requisite changes to the
Prospectus have been made.
(k) Not later than the Effective Time of the Shelf Registration
Statement, the Company shall provide a CUSIP number for the Registrable
Securities that are debt securities.
(l) The Company shall use its reasonable best efforts to comply with
all applicable Rules and Regulations, and to make generally available to its
securityholders as soon as practicable, after (i) the effective date (as defined
in Rule 158(c) under the Securities Act) of the Shelf Registration Statement,
(ii) the effective date of each post-effective amendment to the Shelf
Registration Statement, and (iii) the date of each filing by the Company with
the Commission of an Annual Report on Form 10-K that is incorporated by
reference in the Shelf
7
Registration Statement, an earnings statement of the Company and its
subsidiaries complying with Section 11(a) of the Securities Act and the rules
and regulations of the Commission thereunder (including, at the option of the
Company, Rule 158).
(m) Not later than the Effective Time of the Shelf Registration
Statement, the Company shall cause the Indenture to be qualified under the Trust
Indenture Act; in connection with such qualification, the Company shall
cooperate with the Trustee under the Indenture and the Holders (as defined in
the Indenture) to effect such changes to the Indenture as may be required for
such Indenture to be so qualified in accordance with the terms of the Trust
Indenture Act; and the Company shall execute, and shall use all reasonable
efforts to cause the Trustee to execute, all documents that may be required to
effect such changes and all other forms and documents required to be filed with
the Commission to enable such Indenture to be so qualified in a timely manner.
In the event that any such amendment or modification referred to in this Section
3(m) involves the appointment of a new trustee under the Indenture, the Company
shall appoint a new trustee thereunder pursuant to the applicable provisions of
the Indenture.
(n) In the event of an underwritten offering conducted pursuant to
Section 6 hereof, the Company shall, if requested, promptly include or
incorporate in a Prospectus supplement or post-effective amendment to the Shelf
Registration Statement such information as the Managing Underwriters reasonably
agree should be included therein and to which the Company does not reasonably
object and shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after it is notified of the
matters to be included or incorporated in such Prospectus supplement or
post-effective amendment.
(o) The Company shall enter into such customary agreements (including
an underwriting agreement in customary form in the event of an underwritten
offering conducted pursuant to Section 6 hereof) and take all other appropriate
action in order to expedite and facilitate the registration and disposition of
the Registrable Securities, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification provisions
and procedures substantially identical to those set forth in Section 5 hereof
with respect to all parties to be indemnified pursuant to Section 5 hereof.
(p) The Company shall:
(i)(A) make reasonably available for inspection by any underwriter
participating in any disposition pursuant to the Shelf Registration
Statement, and any attorney, accountant or other agent retained by any
such underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries,
and (B) cause the Company's officers, directors and employees to supply
all information reasonably requested by any such underwriter, attorney,
accountant or agent in connection with the Shelf Registration
Statement, in each case, as is customary for similar due diligence
examinations; provided, however, that all records, information and
documents that are designated in writing by the Company, in good faith,
as confidential shall be kept confidential by any such underwriter,
attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such records,
information or documents become available to the public generally or
through a third party without an accompanying obligation of
confidentiality;
(ii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, make such representations and warranties
to the Electing Holders
8
participating in such underwritten offering and to the Managing
Underwriters, in form, substance and scope as are customarily made by
the Company to underwriters in primary underwritten offerings of
convertible debt securities and covering matters set forth in the
Purchase Agreement, it being understood and agreed that representations
and warranties comparable to those contemplated by the Purchase
Agreement, as amended to reflect a registered offering, shall be
satisfactory;
(iii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain opinions of counsel to the Company
(which counsel and opinions in form, scope and substance shall be
reasonably satisfactory to the Managing Underwriters, it being
understood and agreed that opinions comparable to those contemplated by
the Purchase Agreement, as amended to reflect a registered offering,
shall be satisfactory) addressed to each Electing Holder participating
in such underwritten offering and the underwriters, covering such
matters as are customarily covered in opinions requested in primary
underwritten offerings by the Company of convertible debt securities
(it being agreed that the matters to be covered by such opinions shall
include, in form, scope and substance comparable to the opinions
contemplated by the Purchase Agreement, as amended to reflect a
registered offering, as of the date of the opinion and as of the
Effective Time of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, the absence from
the Shelf Registration Statement and the Prospectus, including the
documents incorporated by reference therein, of an untrue statement of
a material fact or the omission of a material fact required to be
stated therein or necessary to make the statements therein not
misleading);
(iv) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain "cold comfort" letters and updates
thereof from the independent public accountants of the Company (and, if
necessary, from the independent public accountants of any subsidiary of
the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be,
included in the Shelf Registration Statement), addressed to each
Electing Holder participating in such underwritten offering (if such
Electing Holder has provided such letter, representations or
documentation, if any, required for such "cold comfort" letter to be so
addressed) and the underwriters, in customary form and covering matters
of the type customarily covered in "cold comfort" letters in connection
with primary underwritten offerings by the Company of convertible debt
securities, it being understood and agreed that "cold comfort" letters
comparable to those contemplated by the Purchase Agreement, as amended
to reflect a registered offering, shall be satisfactory;
(v) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, deliver such documents and certificates
as may be reasonably requested by any Electing Holders participating in
such underwritten offering and the Managing Underwriters, if any,
including, without limitation, certificates to evidence compliance with
Section 3(j) hereof and with any conditions contained in the
underwriting agreement or other agreements entered into by the Company,
which certificates in each case shall be comparable to those required
by the terms and conditions of the Purchase Agreement, as amended to
reflect a registered offering.
(q) The Company will use its reasonable best efforts to cause the Stock
issuable upon conversion of the Securities to be listed on the New York Stock
Exchange or other stock
9
exchange or trading system on which the Stock primarily trades on or prior to
the Effective Time of the Shelf Registration Statement hereunder.
(r) In the event that any broker-dealer registered under the Exchange
Act shall be an "affiliate" (as defined in Rule 2720(b)(1) of the NASD Rules (or
any successor provision thereto)) of the Company or has a "conflict of interest"
(as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision
thereto)) and such broker-dealer shall underwrite, participate as a member of an
underwriting syndicate or selling group or assist in the distribution of any
Registrable Securities covered by the Shelf Registration Statement, whether as a
Holder of such Registrable Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, the Company shall
assist such broker-dealer in complying with the requirements of the NASD Rules,
including, without limitation, by (A) engaging a "qualified independent
underwriter" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor
provision thereto)) to participate in the preparation of the Shelf Registration
Statement, to exercise usual standards of due diligence in respect thereto and
to recommend the public offering price of such Registrable Securities, (B)
indemnifying such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 5 hereof, and (C) providing
such information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the NASD Rules.
(s) The Company shall use its reasonable best efforts to take all other
steps necessary to effect the registration of the Registrable Securities covered
by the Shelf Registration Statement contemplated hereby.
4. Registration Expenses. Except as otherwise provided in Section 3,
the Company shall bear all fees and expenses incurred in connection with the
performance of its obligations under Sections 2, 3 and 6 hereof. Each Electing
Holder shall pay all underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of such Electing Holder's
Registrable Securities pursuant to the Shelf Registration Statement, and the
fees and disbursements of its counsel and other representatives.
5. Indemnification and Contribution.
(a) Indemnification by the Company. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, the Company shall indemnify
and hold harmless each Electing Holder and each underwriter, selling agent or
other securities professional, if any, which facilitates the disposition of
Registrable Securities, and each person, if any, who controls such Electing
Holder, underwriter, selling agent or other securities professional within the
meaning of Section 15 of the Securities Act (each such person being sometimes
referred to as an "Indemnified Person") against any losses, claims, damages or
liabilities, joint or several, to which such Indemnified Person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise solely out of or
are based solely upon an untrue statement or alleged untrue statement of a
material fact contained in any Shelf Registration Statement under which such
Registrable Securities are to be registered under the Securities Act, or any
Prospectus contained therein or furnished by the Company to any Indemnified
Person, or any amendment or supplement thereto, or arise solely out of or are
based solely upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and the Company hereby agrees to reimburse such Indemnified
Person for any reasonable investigation, legal and other expenses incurred in
connection with, and any amount
10
paid in settlement of, any action, suit or proceeding or any claim asserted,
provided that legal expenses relate to counsel acceptable to the Company;
provided, however, that the Company shall not be liable to any such Indemnified
Person in any such case to the extent that any such untrue statement or alleged
untrue statement or omission or alleged omission was made in such Shelf
Registration Statement or Prospectus, or amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by such
Indemnified Person expressly for use therein.
(b) Indemnification by the Electing Holders and any Agents and
Underwriters. Each Electing Holder agrees, as a consequence of the inclusion of
any of such Electing Holder's Registrable Securities in such Shelf Registration
Statement, and each underwriter, selling agent or other securities professional,
if any, which facilitates the disposition of Registrable Securities shall agree,
as a consequence of facilitating such disposition of Registrable Securities,
severally and not jointly, to (i) indemnify and hold harmless the Company, its
directors, officers and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act, against any losses, claims, damages
or liabilities to which the Company or such other persons may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise solely out of or are based
solely upon an untrue statement or alleged untrue statement of a material fact
contained in such Shelf Registration Statement or any Prospectus contained
therein, or any amendment or supplement thereto, or arise solely out of or are
based solely upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Electing Holder, underwriter, selling agent or other
securities professional expressly for use therein, and (ii) reimburse the
Company for any reasonable investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted, provided that legal expenses relate to counsel
acceptable to such Electing Holder, underwriter, selling agent or other
securities professional.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party under this Section 5, notify such
indemnifying party in writing of the commencement thereof, enclosing a copy of
all papers served; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under the indemnification provisions of or contemplated by
subsection (a) or (b) above (it being understood that the omission so to notify
such indemnifying party shall relieve it from any liability it may have to any
indemnified party under this Section 5). In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, such indemnifying party shall not be liable to such indemnified
party under this Section 5 for any legal expenses of other counsel or any other
expenses, in connection with the defense thereof other than reasonable costs of
investigation subsequently incurred. The indemnified party shall have the right
to employ its counsel in any such action, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
11
employment of counsel by such indemnified party has been authorized in writing
by the indemnifying party or parties, (ii) the indemnified party shall have
reasonably concluded that there may be a conflict of interest between the
indemnifying party or parties and the indemnified party in the conduct of the
defense of such action (in which case the indemnifying party or parties shall
not have the right to direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying party or parties shall not in fact
have employed counsel to assume the defense of such action, in each of which
cases the fees and expenses of counsel shall be at the expense of the
indemnifying party or parties. In the event that the indemnified party retains
separate counsel pursuant to clauses (i), (ii) or (iii) of the previous
sentence, such counsel shall be reasonably acceptable to the indemnifying party.
No indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder.
(d) Contribution. If the indemnification provided for in this Section 5
is unavailable to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein (other than because such indemnification by
its terms does not apply), then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such indemnifying party or by
such indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation (even if
the Electing Holders or any underwriters, selling agents or other securities
professionals or all of them 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 this Section 5(d). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. 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 obligations of the Electing
Holders and any underwriters, selling agents or other securities professionals
in this Section 5(d) to contribute shall be several in proportion to the
percentage of principal amount of Registrable Securities registered or
underwritten, as the case may be, by them and not joint.
(e) Notwithstanding any other provision of this Section 5, in no event
will any (i) Electing Holder be required to undertake liability to any person
under this Section 5 for any amounts in excess of the dollar amount of the
proceeds to be received by such Holder from the sale of such Holder's
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Shelf Registration Statement under which
such Registrable Securities are to be registered under the Securities Act and
(ii) underwriter, selling agent or other securities professional be required to
undertake liability to any person
12
hereunder for any amounts in excess of the total price at which the Registrable
Securities underwritten by it were offered to the public.
(f) The obligations of the Company under this Section 5 shall be in
addition to any liability which the Company may otherwise have to any
Indemnified Person and the obligations of any Indemnified Person under this
Section 5 shall be in addition to any liability which such Indemnified Person
may otherwise have to the Company. The remedies provided in this Section 5 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to an indemnified party at law or in equity. The obligations of the
Company under this Section 5 shall extend, upon the same terms and conditions,
to each person, if any, who controls any Indemnified Person within the meaning
of the Securities Act; and the obligations of the Indemnified Persons under this
Section 5 shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls the Company
within the meaning of the Securities Act.
6. Underwritten Offering. Any Holder of Registrable Securities who
desires to do so may sell Registrable Securities (in whole or in part) in an
underwritten offering; provided that (i) the Electing Holders of at least
33-1/3% in aggregate principal amount of the Registrable Securities then covered
by the Shelf Registration Statement shall request such an offering and (ii) at
least such aggregate principal amount of such Registrable Securities shall be
included in such offering; and provided further that no underwritten offering
may be conducted without the prior agreement of the Company. Upon receipt of
such a request and consent by the Company to such request, the Company shall
provide all Holders of Registrable Securities written notice of the request,
which notice shall inform such Holders that they have the opportunity to
participate in the offering. In any such underwritten offering, the investment
banker or bankers and manager or managers that will administer the offering will
be selected by, and the underwriting arrangements with respect thereto
(including the size of the offering) will be approved by, the holders of a
majority of the Registrable Securities to be included in such offering;
provided, however, that such investment bankers and managers and underwriting
arrangements must be reasonably satisfactory to the Company. No Holder may
participate in any underwritten offering contemplated hereby unless (a) such
Holder agrees to sell such Holder's Registrable Securities to be included in the
underwritten offering in accordance with any approved underwriting arrangements,
(b) such Holder completes and executes all reasonable questionnaires, powers of
attorney, indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such approved underwriting arrangements,
and (c) if such Holder is not then an Electing Holder, such Holder returns a
completed and signed Notice and Questionnaire to the Company in accordance with
Section 3(a)(ii) hereof within a reasonable amount of time before such
underwritten offering. The Holders participating in any underwritten offering
shall be responsible for any underwriting discounts and commissions and fees
and, subject to Section 4 hereof, expenses of their own counsel. The Company
shall pay all expenses customarily borne by issuers in an underwritten offering,
including but not limited to filing fees, the fees and disbursements of its
counsel and independent public accountants and any printing expenses incurred in
connection with such underwritten offering. Notwithstanding the foregoing or the
provisions of Section 3(n) hereof, upon receipt of a request from the Managing
Underwriter or a representative of holders of a majority of the Registrable
Securities to be included in an underwritten offering to prepare and file an
amendment or supplement to the Shelf Registration Statement and Prospectus in
connection with an underwritten offering, the Company may delay the filing of
any such amendment or supplement for up to 90 days if the Board of Directors,
Chief Executive Officer or Chief
13
Financial Officer of the Company shall have determined in good faith that the
Company has a bona fide business reason for such delay.
7. Additional Interest.
(a) Notwithstanding any postponement of effectiveness permitted by
Section 2(a) hereof, if (i) on or prior to the 90th day following the Closing
Date, a Shelf Registration Statement has not been filed with the Commission or
(ii) on or prior to the 180th day following the Closing Date, such Shelf
Registration Statement is not declared effective by the Commission (each, a
"Registration Default"), the Company shall be required to pay additional
interest on the Securities ("Additional Interest") from and including the day
following such Registration Default until such Shelf Registration Statement is
either so filed or so filed and subsequently declared effective, as applicable,
at a rate per annum equal to an additional one-quarter of one percent (0.25%) of
the principal amount of Registrable Securities to and including the 90th day
following such Registration Default and one-half of one percent (0.50%) thereof
from and after the 91st day following such Registration Default.
(b) In the event that (i) the Shelf Registration Statement ceases to be
effective, (ii) the Company suspends the use of the Prospectus pursuant to
Section 2(c) or 3(j) hereof, (iii) the Holders are not authorized to use the
Prospectus pursuant to Section 3(g) hereto or (iv) the Holders are otherwise
prevented or restricted by the Company from effecting sales pursuant to the
Shelf Registration Statement for more than 90 days, whether or not consecutive,
during any 12-month period (an "Effective Failure"), then the Company shall pay
Additional Interest at a rate per annum equal to an additional one-quarter of
one percent (0.25%) of the principal amount of Registrable Securities to and
including the 90th day following an Effective Failure, and one-half of one
percent (0.50%) thereof from and after the 91st day following such Effective
Failure, in each case until the earlier of (1) the time the Holders of
Registrable Securities are again able to make sales under the Shelf Registration
Statement or (2) the expiration of the Effectiveness Period; provided, however,
that such Additional Interest shall be payable only to Holders of Registrable
Securities that have delivered a timely and properly completed Notice and
Questionnaire.
(c) Any amounts to be paid as Additional Interest pursuant to
paragraphs (a) or (b) of this Section 7 shall be paid in cash semi-annually in
arrears, with the first semi-annual payment due on the first Interest Payment
Date (as defined in the Indenture), as applicable, following the date of such
Registration Default or Effective Failure, as applicable. Such Additional
Interest will accrue at the rates set forth in paragraphs (a) or (b) of this
Section 7, as applicable, on the principal amount of the Securities.
(d) Except as provided in Section 8(b) hereof, the Additional Interest
as set forth in this Section 7 shall be the exclusive monetary remedy available
to the Holders of Registrable Securities for such Registration Default or
Effective Failure. In no event shall the Company be required to pay Additional
Interest in excess of the applicable maximum amount of one-half of one percent
(0.50%) set forth above, regardless of whether one or multiple Registration
Defaults or Effective Failures exist.
8. Miscellaneous.
(a) Other Registration Rights. The Company may grant registration
rights that would permit any person that is a third party the right to
piggy-back on any Shelf Registration Statement, provided that if the Managing
Underwriter of any underwritten offering conducted
14
pursuant to Section 6 hereof notifies the Company and the Electing Holders that
the total amount of securities which the Electing Holders and the holders of
such piggy-back rights intend to include in any Shelf Registration Statement is
so large as to materially threaten the success of such offering (including the
price at which such securities can be sold), then the amount, number or kind of
securities to be offered for the account of holders of such piggy-back rights
will be reduced to the extent necessary to reduce the total amount of securities
to be included in such offering to the amount, number and kind recommended by
the Managing Underwriter prior to any reduction in the amount of Registrable
Securities to be included in such Shelf Registration Statement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company fails to perform any of its
obligations hereunder and that the Purchasers and the Holders from time to time
may be irreparably harmed by any such failure, and accordingly agree that the
Purchasers and such Holders, in addition to any other remedy to which they may
be entitled at law or in equity and without limiting the remedies available to
the Electing Holders under Section 7 hereof, shall be entitled to compel
specific performance of the obligations of the Company under this Agreement in
accordance with the terms and conditions of this Agreement, in any court of the
United States or any State thereof having jurisdiction.
(c) Amendments and Waivers. This Agreement, including this Section
8(c), may be amended, and waivers or consents to departures from the provisions
hereof may be given, only by a written instrument duly executed by the Company
and the holders of a majority in aggregate principal amount of Registrable
Securities then outstanding; provided, however, that no change to the timing or
amount of Additional Interest may be made without the consent of all holders of
Registrable Securities. Each Holder of Registrable Securities outstanding at the
time of any such amendment, waiver or consent or thereafter shall be bound by
any amendment, waiver or consent effected pursuant to this Section 8(c), whether
or not any notice, writing or marking indicating such amendment, waiver or
consent appears on the Registrable Securities or is delivered to such Holder.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be given as provided in the Indenture.
(e) Parties in Interest. The parties to this Agreement intend that all
Holders of Registrable Securities shall be entitled to receive the benefits of
this Agreement and that any Electing Holder shall be bound by the terms and
provisions of this Agreement by reason of such election with respect to the
Registrable Securities which are included in a Shelf Registration Statement. All
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the respective successors and assigns
of the parties hereto and any Holder from time to time of the Registrable
Securities to the aforesaid extent. In the event that any transferee of any
Holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be entitled
to receive the benefits of and, if an Electing Holder, be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement to the aforesaid extent.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be
15
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
(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.
(i) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
(j) Survival. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any
Electing Holder, any director, officer or partner of such Holder, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any controlling person of any of the foregoing, and shall survive the transfer
and registration of the Registrable Securities of such Holder.
16
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
Lockheed Xxxxxx Corporation
By: /s/ Xxxxxxx X. Xxx Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxx Xxxxxxx
Title: Vice President and Treasurer
Accepted as of the date hereof:
Citigroup Global Markets Inc.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
Xxxxxxx, Sachs & Co.
By: /s/ Xxxxxxx, Xxxxx & Co.
-------------------------------------
(Xxxxxxx, Sachs & Co.)
X.X. Xxxxxx Securities Inc.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
On behalf of each of the Purchasers
17
