Exhibit 4.2
VISHAY INTERTECHNOLOGY, INC.
3 5/8 Convertible Subordinated Notes due 2023
REGISTRATION RIGHTS AGREEMENT
August 6, 2003
X.X. Xxxxxx Securities Inc.
Banc of America Securities LLC
Wachovia Capital Markets, LLC
As Representatives of the Initial Purchasers
Named in Schedule I to the Purchase Agreement
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Vishay Intertechnology, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell (such issuance and sale, the "Initial Placement") to
the Initial Purchasers (as defined below), upon the terms set forth in a
purchase agreement, dated July 31, 2003 (the "Purchase Agreement"), $450,000,000
aggregate principal amount, plus an option (the "Option") to purchase up to an
additional $50,000,000 aggregate principal amount, of its 3 5/8% Convertible
Subordinated Notes due 2023 (the "Securities"). The Securities will be
convertible into shares of Common Stock (as defined herein), at the conversion
price set forth in the Offering Memorandum (as defined herein), as the same may
be adjusted from time to time pursuant to the Indenture (as defined herein). As
an inducement to you to enter into the Purchase Agreement and in satisfaction of
a condition to your obligations thereunder, the Company agrees with you, (i) for
your benefit and (ii) for the benefit of the Holders (as defined herein) from
time to time of the Securities and the shares of Common Stock issuable upon
conversion of the Securities, as follows:
1. Definitions. Capitalized terms used herein without definition
shall have the respective meanings set forth in the Purchase Agreement. As used
in this Agreement, the following capitalized terms shall have the following
meanings:
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
"Additional Amounts" has the meaning set forth in Section 2(e) hereof.
"Additional Amounts Payment Date" means, with respect to the Securities,
each Interest Payment Date under the Indenture, and each February 1 and August 1
in the case of the shares of Common Stock issuable upon conversion of the
Securities.
"Affiliate" of any specified person means any other person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such person
whether through the ownership of voting securities or by agreement or otherwise.
"Business Day" has the meaning set forth in the Indenture.
"Closing Date" means August 6, 2003.
"Common Stock" means the common stock, par value $0.10 per share, of the
Company, as it exists on the date of this Agreement and any other shares of
capital stock or other securities of the Company into which such Common Stock
may be reclassified or changed, together with any and all other securities which
may from time to time be issuable upon conversion of Securities.
"Company" has the meaning set forth in the preamble hereto.
"DTC" has the meaning set forth in the Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"Holder" means a person who is a holder or beneficial owner of any
Securities or shares of Common Stock issuable upon conversion of Securities;
provided that, unless otherwise expressly stated herein, only registered holders
of Securities or Common Stock issued on conversion thereof shall be counted for
purposes of calculating any proportion of holders entitled to take any action or
give notice pursuant to this Agreement.
"Holder Information" with respect to any Holder means information with
respect to such Holder required to be included in any Shelf Registration
Statement or the related Prospectus pursuant to the Act or included at the
request of such Holder pursuant to Section 3(p) and which information is
included therein in reliance upon and in conformity with information furnished
to the Company in writing by such Holder for inclusion therein. In the event
that a Holder shall participate with the Majority Holders in requiring the
inclusion of information pursuant to Section 3(p), such information shall be
deemed to be Holder Information of such Holder.
"Indemnified Person" has the meaning set forth in Section 5(c) hereof.
"Indemnifying Person" has the meaning set forth in Section 5(c) hereof.
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"Indenture" means the Indenture relating to the Securities, dated August
6, 2003, between the Company and Wachovia Bank, National Association, as
trustee, as the same may be amended from time to time in accordance with the
terms thereof.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Initial Purchasers" mean X.X. Xxxxxx Securities Inc., Banc of America
Securities LLC, Wachovia Capital Markets, LLC and the other initial purchasers
named in and a party to the Purchase Agreement.
"Interest Payment Date" shall mean February 1 and August 1 of each year,
beginning February 1, 2004.
"Losses" has the meaning set forth in Section 5(d) hereof.
"Majority Holders" means the Holders of a majority of the then outstanding
aggregate principal amount of Securities being registered under a Shelf
Registration Statement; provided that Holders of the shares of Common Stock
issued upon conversion of Securities shall be deemed to be Holders of the
aggregate principal amount of Securities from which such Common Stock was
converted; and provided, further, that Securities or shares of Common Stock
which have been sold or otherwise transferred pursuant to the Shelf Registration
Statement or pursuant to Rule 144 shall not be included in the calculation of
Majority Holders.
"NASD" has the meaning set forth in Section 3(i) hereof.
"NASD Rules" means the rules and regulation promulgated by the NASD.
"Notice and Questionnaire" means a Selling Securityholder Notice and
Questionnaire substantially in the form of Annex A to the Offering Memorandum.
"Notice Holder" shall mean, on any date, any Holder of Transfer Restricted
Securities that has delivered a completed and signed Notice and Questionnaire to
the Company on or prior to such date.
"Offering Memorandum" means the Final Memorandum as defined in the
Purchase Agreement.
"Option" has the meaning set forth in the preamble hereto.
"Person" has the meaning set forth in the Indenture.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or shares of Common Stock issuable
upon conversion thereof covered by such Shelf Registration Statement, and all
amendments and
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supplements to such prospectus, including all documents incorporated or deemed
to be incorporated by reference in such prospectus.
"Purchase Agreement" has the meaning set forth in the preamble hereto.
"Record Date" means, with respect to any Additional Amounts Payment Date,
the January 15 or July 15 immediately preceding any such Additional Amounts
Payment Date.
"Record Holder" with respect to any Additional Amounts Payment Date means,
with respect to any Securities, each person who is registered on the books of
the registrar of the Securities as holder of Securities on the Record Date
immediately preceding such Additional Amounts Payment Date and, with respect to
any Common Stock issued on conversion of any Securities, each person who is
registered on the books of the transfer agent for the Common Stock as a holder
of such Common Stock on the Record Date immediately preceding such Additional
Amounts Payment Date.
"Registration Default" has the meaning set forth in Section 2(e) hereof.
"Rule 144" means Rule 144 under the Act (or any similar provision then in
force).
"Rule 144A" means Rule 144A under the Act (or any successor provision
promulgated by the SEC).
"Rule 144(k)" means Rule 144(k) under the Act (or any successor provision
promulgated by the SEC).
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning set forth in the preamble hereto.
"Shelf Registration" means a registration effected pursuant to Section 2
hereof.
"Shelf Registration Period" has the meaning set forth in Section 2(c)
hereof.
"Shelf Registration Statement" means any "shelf" registration statement of
the Company filed pursuant to the provisions of Section 2 hereof which covers
the Securities and the shares of Common Stock issuable upon conversion thereof,
as applicable, on Form S-3 or on another appropriate form for an offering to be
made on a delayed or continuous basis pursuant to Rule 415 under the Act, or any
similar rule that may be adopted by the SEC, and all amendments and supplements
to such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
documents incorporated or deemed to be incorporated by reference therein.
"Suspension Period" has the meaning set forth in Section 2(d) hereof.
"Transfer Restricted Securities" means each Security and each share of
Common Stock issuable upon conversion thereof (and any security issued with
respect thereto upon any stock dividend, split or similar event) until the
earliest of the date on which such Security or share of
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Common Stock, or any security issued with respect thereto upon any stock
dividend, split or similar event, as the case may be, (i) has been transferred
pursuant to a Shelf Registration Statement or another registration statement
covering such Security or share of Common Stock which has been filed with the
SEC pursuant to the Act, in either case after such registration statement has
become effective and while such registration statement is effective under the
Act, (ii) has been transferred pursuant to Rule 144 (or any similar provision
then in force) or (iii) may be sold or transferred pursuant to Rule 144(k) (or
any successor provision promulgated by the SEC).
"Trustee" means the trustee with respect to the Securities under the
Indenture.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included," or "stated" in the Shelf
Registration Statement, any preliminary Prospectus or Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
or deemed to be incorporated by reference in such Shelf Registration Statement,
preliminary Prospectus or Prospectus, as the case may be; and all references in
this Agreement to amendments or supplements to the Shelf Registration Statement,
any preliminary Prospectus or Prospectus shall be deemed to mean and include any
document filed with the SEC under the Exchange Act, after the date of such Shelf
Registration Statement, preliminary Prospectus or Prospectus, as the case may
be, which is incorporated or deemed to be incorporated by reference therein.
2. Shelf Registration Statement.
(a) The Company shall, at its expense, prepare and file with the SEC
within 90 days following the Closing Date a Shelf Registration Statement with
respect to resales of the Transfer Restricted Securities by the Holders from
time to time in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement (it being understood,
however, that no distribution may take the form of an underwritten offering
without the prior agreement of the Company in its sole discretion) and
thereafter shall use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective under the Act within 180 days
after the Closing Date; provided that if any Securities are issued upon exercise
of the Option granted to the Initial Purchasers in the Purchase Agreement and
the date on which such Securities are issued occurs after the Closing Date, the
Company will take such steps, prior to the effective date of the Shelf
Registration Statement, to ensure that such Securities issued upon an exercise
of the Option and the shares of Common Stock issuable upon conversion thereof
are included in the Shelf Registration Statement on the same terms as the
Securities issued on the Closing Date. The Company shall supplement or amend the
Shelf Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Company for the
Shelf Registration Statement, or by the Act, the Exchange Act or the SEC.
(b) (1) The Company shall give notice to all Holders of Transfer
Restricted Securities not less than 30 calendar days prior to the date on which
the Company intends in good faith to have the Shelf Registration Statement
declared effective, by issuing a press release to Reuters Economic Services and
Bloomberg Business News or similar financial news service.
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The Company shall take action to name each Holder that is a Notice Holder as of
the date that is 20 calendar days prior to the effectiveness of the Shelf
Registration Statement so that such Holder is named as a selling securityholder
in the Shelf Registration Statement at the time of its effectiveness and is
permitted to deliver the Prospectus forming a part thereof as of such time to
purchasers of such Holder's Transfer Restricted Securities in accordance with
applicable law. The Company shall be under no obligation to name any Holder that
is not a Notice Holder as a selling security holder in the Shelf Registration
Statement.
(2) After the Shelf Registration Statement has become effective, the
Company shall, upon the request of any Holder of Transfer Restricted Securities,
promptly send a Notice and Questionnaire to such Holder and the Company shall
(i) as promptly as is practicable after the date a completed and signed Notice
and Questionnaire is delivered to the Company, and in any event within 10
Business Days after such date, prepare and file with the SEC (x) a supplement to
the Prospectus or, if required by applicable law, a post-effective amendment to
the Shelf Registration Statement and (y) any other document required by
applicable law, so that the Holder delivering such Notice and Questionnaire is
named as a selling securityholder in the Shelf Registration Statement and is
permitted to deliver the Prospectus to purchasers of such Holder's Transfer
Restricted Securities in accordance with applicable law. If the Company files a
post-effective amendment to the Shelf Registration Statement, it shall use its
reasonable best efforts to cause such post-effective amendment to become
effective under the Act as promptly as is practicable; provided, however, that
if a Notice and Questionnaire is delivered to the Company during a Suspension
Period, the Company shall not be obligated to take the actions set forth above
until the termination of such Suspension Period.
(c) The Company shall use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective under the Act in order to
permit the Prospectus forming a part thereof to be usable, subject to Section
2(d), by all Notice Holders until the earliest of (i) the last date on which the
holding period applicable to sales of the Securities and the shares of Common
Stock issuable upon conversion of the Securities under Rule 144(k) has expired,
(ii) the date as of which all the Securities and the shares of Common Stock
issuable upon conversion of the Securities have been transferred under Rule 144,
and (iii) such date as of which all the Securities and the shares of Common
Stock issuable upon conversion thereof have been sold pursuant to the Shelf
Registration Statement (in any such case, such period being called the "Shelf
Registration Period"). The Company will, (x) subject to Section 2(d), prepare
and file with the SEC such amendments and post-effective amendments to the Shelf
Registration Statement as may be necessary to keep the Shelf Registration
Statement continuously effective for the Shelf Registration Period, (y) subject
to Section 2(d), cause the related Prospectus to be supplemented by any required
supplement, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Act and (z) comply in all material
respects with the provisions of the Act with respect to the disposition of all
Securities and the shares of Common Stock issuable upon conversion of the
Securities covered by the Shelf Registration Statement during the Shelf
Registration Period in accordance with the intended methods of disposition by
the Holders thereof set forth in such Shelf Registration Statement and the
related Prospectus, as amended and supplemented.
(d) The Company may suspend the availability of any Shelf
Registration Statement and the use of any Prospectus (the period during which
the availability of any Shelf
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Registration Statement and any Prospectus may be suspended herein referred to as
the "Suspension Period"), without incurring any obligation to pay Additional
Amounts pursuant to Section 2(e), for a period not to exceed either 45 days in
the aggregate in any three-month period or 120 days in the aggregate during any
12-month period during the period beginning on the effective date of the initial
Shelf Registration Statement and ending on or prior to the expiration of the
holding period applicable to sales of the Securities and shares of Common Stock
issuable upon conversion of the Securities under Rule 144(k), for valid business
reasons, to be determined by the Company in its sole judgment (which shall not
include the avoidance of the Company's obligations hereunder), including,
without limitation, the acquisition or divestiture of assets, pending corporate
developments, public filings with the SEC and similar events; provided that the
Company promptly thereafter complies with the requirements of Section 3(j)
hereof, if applicable.
(e) The Company and the Initial Purchasers agree that the Holders of
Transferred Restricted Securities will suffer damages, and it would not be
feasible to ascertain the extent of such damages with precision, if the Company
fails to fulfill its obligations under Section 2 hereof. Accordingly, if (i) the
Shelf Registration Statement is not filed with the SEC on or within 90 days
after the Closing Date, (ii) the Shelf Registration Statement has not been
declared effective by the SEC within 180 days after the Closing Date, or (iii)
the Shelf Registration Statement is filed and declared effective but shall
thereafter cease to be effective (without being succeeded immediately by a
replacement Shelf Registration Statement filed and declared effective) or usable
(including as a result of a Suspension Period) for the offer and sale of
Transfer Restricted Securities for a period of time (including any Suspension
Period) which exceeds either 45 days in the aggregate in any three-month period
or 120 days in the aggregate in any 12-month period during the period beginning
on the effective date of the initial Shelf Registration Statement and ending on
or prior to the expiration of the holding period applicable to sales of the
Securities and shares of Common Stock issuable upon conversion of the Securities
under Rule 144(k) (each such event referred to in clauses (i) through (iii), a
"Registration Default"), the Company will pay Additional Amounts ("Additional
Amounts") on each Additional Amounts Payment Date to each Notice Holder who is
also a Record Holder with respect to such Additional Amounts Payment Date. The
amount of Additional Amounts payable during any period in which a Registration
Default has occurred or is continuing is the amount which is equal to (i)
one-quarter of one percent (25 basis points) per annum per $1,000 principal
amount of Securities or $2.50 per annum per 46.9925 shares of Common Stock
(subject to adjustment in the event of a stock split, stock recombination, stock
dividend and the like) constituting Transfer Restricted Securities for the
period up to and including the 90th day during which such Registration Default
has occurred and is continuing and (ii) one-half of one percent (50 basis
points) per annum per $1,000 principal amount of Securities or $5.00 per annum
per 46.9925 shares of Common Stock (subject to adjustment in the event of a
stock split, stock recombination, stock dividend and the like) constituting
Transfer Restricted Securities for the period including and subsequent to the
91st day during which such Registration Default has occurred and is continuing,
it being understood that all calculations pursuant to this and the preceding
sentence shall be carried out to five decimal places. Following the cure of all
Registration Defaults, Additional Amounts will cease to accrue with respect to
such Registration Defaults. All accrued Additional Amounts shall be paid by the
Company in cash to the date of such cure and Additional Amounts will be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
The parties hereto agree that the Additional Amounts provided for in this
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Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Holders by reason of a Registration Default.
(f) All of the Company's obligations (including, without limitation,
the obligation to pay Additional Amounts) set forth in the preceding paragraph
which are outstanding or exist with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such security
shall have been satisfied in full.
(g) Immediately upon the occurrence or the termination of a
Registration Default, the Company shall give (i) the Trustee, so long as the
Securities remain outstanding, and (ii) the transfer agent for the Common Stock,
in the case of notice with respect to the shares of Common Stock issuable upon
conversion of Securities, notice of such occurrence or termination of the
obligation to pay Additional Amounts with regard to the Securities or the Common
Stock, as the case may be, and the amount thereof and of the event giving rise
to such commencement or termination (such notice to be contained in an Officer's
Certificate (as such term is defined in the Indenture)), and prior to receipt of
such Officer's Certificate the Trustee and the transfer and paying agent shall
be entitled to assume that no such occurrence or termination has occurred, as
the case may be.
3. Registration Procedures. In connection with any Shelf
Registration Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to the Initial Purchasers, within
a reasonable period of time prior to the filing thereof with the SEC to afford
the Initial Purchasers and their counsel a reasonable opportunity for review, a
copy of each Shelf Registration Statement, and each amendment thereof, and a
copy of each Prospectus, and each amendment or supplement thereto (excluding
amendments caused by the filing of a report under the Exchange Act), and shall
reflect in each such document, when so filed with the SEC, such comments as the
Initial Purchasers may reasonably propose, except to the extent the Company
reasonably determines it to be inadvisable or inappropriate to reflect such
comments therein, and (ii) include information regarding the Notice Holders and
the methods of distribution they have elected for their Transfer Restricted
Securities provided to the Company in Notice and Questionnaires as necessary to
permit such distribution by the methods specified therein.
(b) Subject to Section 2(d), the Company shall ensure that (i) any
Shelf Registration Statement and any amendment thereto and any Prospectus
forming a part thereof and any amendment or supplement thereto comply in all
material respects with the Act and the rules and regulations thereunder, (ii)
any Shelf Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any Prospectus forming a part of any
Shelf Registration Statement, and any amendment or supplement to such
Prospectus, does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided
that the Company makes no representation with respect to any Holder Information.
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(c) The Company, as promptly as reasonably practicable (but in any
event within two Business Days), shall notify the Initial Purchasers and, to the
extent provided below, each Notice Holder and, if requested by you or any such
Holder, confirm such notice in writing:
(i) when a Shelf Registration Statement and any amendment thereto or
any Prospectus and any amendments and supplements thereto has been filed
with the SEC;
(ii) when the Shelf Registration Statement or any post-effective
amendment thereto has become effective;
(iii) of any request by the SEC following effectiveness of the Shelf
Registration Statement for amendments or supplements to the Shelf
Registration Statement or the Prospectus or for additional information
(other than any such request relating to a review of the Company's
Exchange Act filings);
(iv) of the issuance by the SEC of any stop order suspending the
effectiveness of the Shelf Registration Statement or of any order
preventing or suspending the use of any Prospectus or the initiation or
threat of any proceedings for that purpose;
(v) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Transfer Restricted
Securities included in any Shelf Registration Statement for sale in any
jurisdiction or the initiation or threat of any proceeding for that
purpose;
(vi) of the happening of any event or the existence of any condition
or any information becoming known that requires the making of any
changes in the Shelf Registration Statement or the Prospectus or any
document incorporated by reference therein so that, as of such date, the
statements therein are not misleading and the Shelf Registration
Statement or the Prospectus or any document incorporated by reference
therein, as the case may be, does not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading, it being understood that the Company shall not be
required to disclose the details of any such event or condition;
(vii) of the Company's determination that a post-effective amendment
to the Shelf Registration Statement is necessary; and
(viii) of the commencement (including as a result of any of the
events or circumstances described in paragraphs (iii) through (vii)
above) and termination of any Suspension Period.
Notification of Notice Holders shall be required with respect to the
matters set forth in clauses (ii) (provided that, in the case of any
post-effective amendment, only to the extent (x) such post-effective amendment
has been filed so that the Shelf Registration Statement will not include an
untrue statement of material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading or
(y) such Notice Holder is named in such post-effective amendment), (iv), (v),
(vi), and (viii).
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(d) The Company shall use its reasonable best efforts to obtain (i)
the withdrawal of any order suspending the effectiveness of any Shelf
Registration Statement and the use of any related Prospectus and (ii) the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Transfer Restricted Securities for offer or sale in any
jurisdiction in which they have been qualified for sale, in each case at the
earliest possible time, and shall provide notice to each Holder of the
withdrawal of any such orders or suspensions.
(e) The Company shall promptly upon request furnish to each Notice
Holder, without charge, at least one copy of any Shelf Registration Statement
and any post-effective amendment thereto, excluding all documents incorporated
or deemed to be incorporated therein by reference and all exhibits thereto
(unless specifically requested to the Company by such Notice Holder).
(f) The Company shall, during the Shelf Registration Period,
promptly deliver to the Initial Purchasers, each Notice Holder and any sales or
placement agent or underwriters acting on their behalf, without charge, as many
copies of the Prospectus (including each preliminary Prospectus) included in any
Shelf Registration Statement, and any amendment or supplement thereto, as such
person may reasonably request; and, except as provided in Sections 2(d) and 3(s)
hereof, the Company consents to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders in connection with the
offering and sale of the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto.
(g) Prior to any offering of Transfer Restricted Securities pursuant
to any Shelf Registration Statement, the Company shall register or qualify or
cooperate with the Notice Holders and their respective counsel in connection
with the registration or qualification (or exemption from such registration or
qualification) of such Transfer Restricted Securities for offer and sale, under
the securities or blue sky laws of such jurisdictions within the United States
as any such Notice Holders reasonably request and shall maintain such
qualification in effect so long as required and do any and all other acts or
things necessary or advisable to enable the offer and sale in such jurisdictions
of the Transfer Restricted Securities covered by such Shelf Registration
Statement; provided, however, that the Company will not be required to (A)
qualify generally to do business as a foreign corporation or as a dealer in
securities in any jurisdiction where it is not then so qualified or to (B) take
any action which would subject it to service of process or taxation in excess of
a nominal dollar amount in any such jurisdiction where it is not then so
subject.
(h) The Company shall cooperate with the Notice Holders to
facilitate the timely preparation and delivery of certificates representing
Transfer Restricted Securities sold pursuant to any Shelf Registration Statement
free of any restrictive legends and, with respect of any Securities, in such
denominations permitted by the Indenture and registered in such names as Holders
may request at least two Business Days prior to settlement of sales of Transfer
Restricted Securities pursuant to such Shelf Registration Statement. The
provisions of this 3(h) shall not apply to the Securities for so long as they
are held in book-entry form and are represented by a global certificate issued
to DTC or its nominee.
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(i) Subject to the exceptions contained in (A) and (B) of Section
3(g) above, the Company shall use its reasonable best efforts to cause the
Transfer Restricted Securities covered by the applicable Shelf Registration
Statement to be registered with or approved by such other federal, state and
local governmental agencies or authorities, and self-regulatory organizations in
the United States as may be necessary to enable the Notice Holders to consummate
the disposition of such Transfer Restricted Securities as contemplated by the
Shelf Registration Statement; without limitation to the foregoing, the Company
shall provide all such information as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") in connection with the
offering under the Shelf Registration Statement of the Transfer Restricted
Securities (including, without limitation, such as may be required by NASD Rule
2710 or 2720), and shall cooperate with each Notice Holder, at such Holder's
expense, in connection with any filings required to be made with the NASD by
such Holder in that regard.
(j) Upon the occurrence of any event described in Section 3(c)(v) or
3(c)(vi) hereof, the Company shall promptly prepare and file with the SEC a
post-effective amendment to any Shelf Registration Statement, or an amendment or
supplement to the related Prospectus, or any document incorporated therein by
reference, or file a document which is incorporated or deemed to be incorporated
by reference in such Shelf Registration Statement or Prospectus, as the case may
be, so that, as thereafter delivered to purchasers of the Transfer Restricted
Securities included therein, the Shelf Registration Statement and the
Prospectus, in each case as then amended or supplemented, will not include an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein (in
the case of the Prospectus in light of the circumstances under which they were
made) not misleading and, in the case of a post-effective amendment, use its
reasonable best efforts to cause it to become effective as promptly as
practicable; provided that the Company's obligations under this paragraph (j)
shall be suspended if the Company has suspended the use of the Prospectus in
accordance with Section 2(d) hereof and given notice of such suspension to
Notice Holders, it being understood that the Company's obligations under this
Section 3(j) shall be automatically reinstated at the end of such Suspension
Period.
(k) The Company shall use its reasonable best efforts to provide,
prior to the effective date of any Shelf Registration Statement hereunder (i) a
CUSIP number for the Transfer Restricted Securities registered under such Shelf
Registration Statement and (ii) global certificates for such Transfer Restricted
Securities to the Trustee, in a form eligible for deposit with DTC.
(l) The Company shall use its reasonable best efforts to comply
with all applicable rules and regulations of the SEC and shall make generally
available to its security holders an earnings statement satisfying the
provisions of Section 11(a) of the Act and Rule 158 promulgated by the SEC
thereunder (or any similar rule promulgated under the Act) for a 12-month period
commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of any Shelf Registration Statement or each
post-effective amendment to any Shelf Registration Statement, which such
statements shall be made available no later than 45 days after the end of the
12-month period or 90 days after the end of the 12-month period, if the 12-month
period coincides with the fiscal year of the Company.
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(m) The Company shall use its reasonable best efforts to cause the
Indenture to be qualified under the TIA (as defined in the Indenture) not later
than the effective date of the first Shelf Registration Statement.
(n) The Company shall cause all shares of Common Stock issuable upon
conversion of the Securities to be reserved for listing on each securities
exchange or quotation system on which the Common Stock is then listed no later
than the date the applicable Shelf Registration Statement is declared effective
and, shall cause all Common Stock to be so listed when issued, and, in
connection therewith, to make such filings as may be required under the Exchange
Act and to have such filings declared effective as and when required thereunder.
(o) The Company may require each Holder of Transfer Restricted
Securities to be sold pursuant to any Shelf Registration Statement to furnish to
the Company such information regarding the Holder and the distribution of such
Transfer Restricted Securities sought by the Notice and Questionnaire and such
additional information as may, from time to time, be required by the Act and/or
the SEC, and the obligations of the Company to any Holder hereunder shall be
expressly conditioned on the compliance of such Holder with such request.
(p) The Company shall, if reasonably requested, use its reasonable
best efforts to incorporate in a Prospectus supplement or post-effective
amendment to a Shelf Registration Statement such relevant and customary
information as any Notice Holder may provide in writing to be included
concerning such Holder and the distribution of such Holder's Transfer Restricted
Securities or as the Majority Holders may otherwise provide in writing to be
included, and in either case shall make all required filings of such Prospectus
supplement or post-effective amendment as promptly as practicable in the
circumstances after being notified in writing of such matters to be incorporated
in such Prospectus supplement or post-effective amendment, provided that the
Company shall not be required to take any action under this Section 3(p) that is
not, in the reasonable opinion of counsel for the Company, in compliance with
applicable law.
(q) In the case of an underwritten offering, take all actions
necessary, or reasonably requested by the holders of a majority of the Transfer
Restricted Securities being sold, in order to expedite or facilitate disposition
of such Transfer Restricted Securities; provided that the Company shall not be
required to take any action in connection with an underwritten offering without
its consent, which consent may be withheld for any reason;
(r) If reasonably requested in writing in connection with any
disposition of Transfer Restricted Securities pursuant to a Shelf Registration
Statement, make reasonably available for inspection during normal business hours
by a representative for the Notice Holders of such Transfer Restricted
Securities and any broker-dealers, attorneys and accountants retained by such
Notice Holders, all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries as reasonable
requested, and cause the appropriate executive officers, directors and
designated employees of the Company and its subsidiaries to make reasonably
available for inspection during normal business hours all relevant information
reasonably requested by such representative for the Notice Holders or any such
broker-dealers, attorneys or accountants in connection with such disposition, in
each case as is customary for similar "due diligence" examinations; provided,
however that any information that is designated in writing by the Company, in
good faith, as confidential at the time of
12
delivery of such information shall be kept confidential by such persons, unless
disclosure thereof is made in connection with a court, administrative or
regulatory proceeding or required by law, or such information has become
available to the public generally through the Company or through a third party
without an accompanying obligation of confidentiality.
(s) Each Notice Holder agrees that, upon receipt of notice of the
happening of an event described in clauses (iv), (v)(, (vi) and (viii) of
Section 3(c), each Holder shall forthwith discontinue (and shall cause its
agents and representatives to discontinue) disposition of Transfer Restricted
Securities and will not resume disposition of Transfer Restricted Securities
until such Holder has received copies of an amended or supplemented Prospectus
contemplated by Section 3(j) hereof, or until such Holder is advised in writing
by the Company that the use of the Prospectus may be resumed or that the
relevant Suspension Period has been terminated, as the case may be, provided
that the foregoing shall not prevent the sale, transfer or other disposition of
Transfer Restricted Securities by a Notice Holder in a transaction which is
exempt from, or not subject to, the registration requirements of the Act, so
long as such Notice Holder does not and is not required to deliver the
applicable Prospectus or Shelf Registration Statement in connection with such
sale, transfer or other disposition, as the case may be; and provided, further,
that the provisions of this Section 3(s) shall not prevent the occurrence of a
Registration Default or otherwise limit the obligation of the Company to pay
Additional Amounts.
(t) In the event that any broker-dealer, with the consent of the
Company which consent may be withheld for any reason, shall underwrite any
Transfer Restricted Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the public distribution" (within the
meaning of the NASD Rules) thereof, whether as a Holder of such Transfer
Restricted 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 NASD Rules, including, without limitation,
by:
(i) if the NASD Rules shall so require, engaging a "qualified
independent underwriter" (as defined in the NASD Rules) to participate
in the preparation of the Shelf Registration Statement, to exercise
usual standards of due diligence with respect thereto and, if any
portion of the offering contemplated by the Shelf Registration Statement
is an underwritten offering or is made through a placement or sales
agent, to recommend the price of such Transfer Restricted Securities;
(ii) indemnifying any such qualified independent underwriter to the
extent of the indemnification of Holders provided in Section 5 hereof;
and
(iii) 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.
4. Registration Expenses. The Company shall bear all expenses
incurred in connection with the performance of its obligations under Sections 2
and 3 hereof and shall reimburse the Holders for the reasonable fees and
disbursements of one firm or counsel designated by the Majority Holders to act
as counsel for the Holders in connection therewith. Notwithstanding the
provisions of this Section 4, each Holder shall bear the expense of any broker's
commission, agency fee and underwriter's discount or commission, if any,
relating to
13
the sale or disposition of such Holder's Transfer Restricted Securities pursuant
to a Shelf Registration Statement.
5. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Holder of
Transfer Restricted Securities covered by any Shelf Registration Statement
(including, without limitation, the Initial Purchasers) and each person who
controls any such Holder within the meaning of either the Act or the Exchange
Act (collectively referred to for purposes of this Section 5 as a "Holder")
against any losses, claims, damages or liabilities, joint or several, to which
any of them may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement, or in any
Prospectus, or any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and will reimburse each such party
for any legal or other expenses reasonably incurred by such party in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, (i) that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon Holder Information, (ii) that with respect to any untrue
statement or omission of material fact made in any Shelf Registration Statement,
or in any Prospectus, the indemnity agreement contained in this Section 5(a)
shall not inure to the benefit of the Holder or any person who controls the
Holder within the meaning of either the Act or the Exchange Act from whom the
person asserting any such loss, claim, damage or liability purchased the
securities concerned, to the extent that any such loss, claim, damage or
liability of the Holders occurs under the circumstance where it shall have been
established that (w) the Company had previously furnished copies of the
Prospectus, and any amendments and supplements thereto, to the Holder, (x)
delivery of the Prospectus, and any amendment or supplements thereto, was
required by the Act to be made to such person, (y) the untrue statement or
omission of a material fact contained in the Prospectus was corrected in
amendments or supplements thereto, and (z) there was not sent or given to such
person, at or prior to the written confirmation of the sale of such securities
to such person, a copy of such amendments or supplements to the Prospectus, and
(iii) the Company will not be liable for any such loss, claim, damage or
liability in connection with any settlement of any pending or threatened
litigation or any pending or threatened governmental agency investigation or
proceeding if that settlement is effected without the prior written consent of
the Company, which consent shall not be unreasonably withheld. This indemnity
agreement will be in addition to any liability that the Company may otherwise
have.
(b) Each Holder, severally and not jointly, agrees to indemnify and
hold harmless the Company, each of its directors and officers and each person
who controls the Company within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Company to the
Holders and agrees to reimburse each such indemnified party, as incurred, for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any loss, claim, damage, liability or action, but
only with reference to Holder Information supplied by such Holder. This
indemnity agreement will be in addition to any liability that such Holder may
otherwise have.
14
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons in connection with any one action or
similar but separate or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm for
the Initial Purchasers, the Holders and such control persons of the Initial
Purchasers and the Holders shall be designated in writing by the Holders and any
such separate firm for the Company, its directors, its officers and such control
persons of the Company shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Person
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such Indemnifying Person of the aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement, unless the
indemnifying party shall in good faith contest the reasonableness of such fees
and expenses (but only to the extent so contested) or the entitlement of the
indemnified person to indemnification under the terms of this Section 5. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding on terms
reasonably satisfactory to such Indemnified Person.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 5 is unavailable to or insufficient to hold harmless an
indemnified party for any reason,
15
each indemnifying party agrees to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively, "Losses") to
which the indemnified party may be subject in such proportion as is appropriate
to reflect the relative benefits received by the Company from the Initial
Placement, on the one hand, and a Holder with respect to the sale by such Holder
of Securities or Common Stock, on the other hand; provided, however, that in no
case shall an indemnifying party that is a Holder be responsible for any amount
in excess of the total price at which the Transfer Restricted Securities are
sold by such Holder to a purchaser. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
such Holder shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company on the
one hand and of such Holder on the other in connection with the statements or
omissions which resulted in such Losses, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and such Holder on the other shall be deemed to be in the same respective
proportions as the total net proceeds from the Initial Placement (before
deducting expenses) received by or on behalf of the Company as set forth in the
Offering Memorandum, on the one hand, and the total proceeds received by such
Holder with respect to its sale of Transferred Restricted Securities under the
Shelf Registration Statement, on the other hand, bear to the total gross
proceeds from the Initial Placement. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or
relates to Holder Information supplied by such Holder, on the other, the intent
of the parties and their relative knowledge, information and opportunity to
correct or prevent such untrue statement or omission. The parties agree that it
would not be just and equitable if contribution pursuant to this paragraph (d)
were determined by pro rata allocation or any other method of allocation that
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 5(d), each person who
controls such Holder within the meaning of either the Act or the Exchange Act
shall have the same rights to contribution as such Holder, and each person who
controls the Company within the meaning of either the Act or the Exchange Act
and each officer and director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The provisions of this Section 5 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder, any
underwriter or the Company or any of the officers, directors or controlling
persons referred to in Section 5 hereof, and will survive the sale by a Holder
of Transfer Restricted Securities covered by a Shelf Registration Statement.
6. Rules 144 and 144A. The Company covenants that it shall use its
reasonable best efforts to file the reports required to be filed by it under the
Act and the Exchange Act in a timely manner so long as the Transfer Restricted
Securities remain outstanding. If at any time the Company is not required to
file such reports, it will, upon request of any Holder or beneficial owner of
Transfer Restricted Securities, make available such
16
information necessary to permit sales pursuant to Rule 144A. The Company further
covenants that, for as long as any Transfer Restricted Securities remain
outstanding, it will take such further action as any Holder of Transfer
Restricted Securities may reasonably request, all to the extent required from
time to time to enable such Holder to sell Transfer Restricted Securities
without registration under the Act within the limitation of the exemptions
provided by Rule 144 and Rule 144A. Upon the written request of any Holder of
Transfer Restricted Securities, the Company shall deliver to such Holder a
written statement as to whether it has complied with such requirements.
7. Underwritten Offerings.
(a) If any of the Transfer Restricted Securities covered by any
Shelf Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the underwritten offering will be selected by the Majority Holders of
such Transfer Restricted Securities included in such underwritten offering,
subject to the consent of the Company (which shall not be unreasonably withheld
or delayed), and such Holders shall be responsible for all underwriting
commissions and discounts in connection therewith; provided, however, that
notwithstanding anything contained in this Agreement to the contrary, no
underwritten offering shall be effected pursuant to this Agreement without the
prior consent of the Company, which consent may be withheld for any reason.
(b) No Holder may participate in any underwritten offering hereunder
unless such person (i) agrees to sell such Holder's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the Holders entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of at least the majority of the Holders of the then outstanding Transfer
Restricted Securities; provided that with respect to any matter that directly or
indirectly affects the rights of the Initial Purchasers hereunder, the Company
shall obtain the written consent of the Initial Purchasers against which such
amendment, qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Transfer Restricted
Securities are
17
being sold pursuant to a Shelf Registration Statement and that does not directly
or indirectly affect the rights of other Holders may be given by the Majority
Holders.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to the Initial Purchasers, initially at their address set
forth in the Purchase Agreement;
(ii) if to any other Holder, at the most current address of such
Holder maintained by the Registrar under the Indenture or the registrar
of the Common Stock (provided that while the Securities or the Common
Stock are in book-entry form, notice to the Trustee shall serve as
notice to the Holders), or, in the case of the Notice Holder, the
address set forth in its Notice and Questionnaire; and
(iii) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received, if delivered by hand or air courier, and when sent, if sent
by first-class mail or telecopier.
The Initial Purchasers or the Company by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company thereto, subsequent Holders. The Company hereby agrees to extend the
benefits of this Agreement to any Holder and underwriter and any such Holder and
underwriter may specifically enforce the provisions of this Agreement as if an
original party hereto. In the event that any other person shall succeed to the
Company under the Indenture, then such successor shall enter into an agreement,
in form and substance reasonably satisfactory to the Initial Purchasers, whereby
such successor shall assume all of the Company's obligations under this
Agreement.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED IN SAID STATE.
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(h) Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or the shares of Common Stock issuable upon conversion thereof is required
hereunder, Securities or the shares of Common Stock issued upon conversion
thereof held by the Company or its Affiliates (other than subsequent Holders of
Securities or the Common Stock issued upon conversion thereof if such subsequent
Holders are deemed to be Affiliates solely by reason of their holdings of such
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
(j) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Shelf Registration Period, except
for any liabilities or obligations under Section 2(e), 4 or 5 to the extent
arising prior to the end of the Shelf Registration Period.
19
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
VISHAY INTERTECHNOLOGY, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer and
Executive Vice President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
X.X. XXXXXX SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
WACHOVIA CAPITAL MARKETS, LLC
Acting on behalf of themselves and as Representatives
of the Initial Purchasers
By: X.X. XXXXXX SECURITIES INC.,
By: /s/ Xxxxx Xxxxx
------------------------
Name: Xxxxx Xxxxx
Title: Vice President
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