Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made
and entered into this 31st day of August, 1999 among Tyco International Group
S.A., a Luxembourg company (the "Company"), Tyco International Ltd., a Bermuda
company (the "Guarantor") and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, X.X. Xxxxxx Securities Inc., Xxxxxx Brothers Inc., Xxxxxx Xxxxxxx
& Co. Incorporated, Credit Suisse First Boston Corporation, Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation, Xxxxxxx, Sachs & Co., Bear, Xxxxxxx & Co. Inc.,
Banc of America Securities LLC, Chase Securities Inc., Commerzbank Capital
Markets Corporation, Warburg Dillon Read LLC, Xxxxxxx Xxxxx Xxxxxx Inc., The
Xxxxxxxx Capital Group, L.P., and Xxxxxxxx & Partners, L.P. (collectively, the
"Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement,
dated August 26, 1999, among the Company, the Guarantor and the Initial
Purchasers (the "Purchase Agreement"), which provides for the sale by the
Company to the Initial Purchasers of an aggregate of $1,000,000,000 principal
amount of 6.875% Notes due 2002 and related guarantees of the Securities issued
by the Guarantor (collectively, the "Securities"). In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Company and the
Guarantor has agreed to provide to the Initial Purchasers and their direct and
indirect transferees the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"1933 ACT" shall mean the United States Securities Act of
1933, as amended from time to time.
"1934 ACT" shall mean the United States Securities Exchange
Act of l934, as amended from time to time.
"CLOSING DATE" shall mean the Closing Time as defined in the
Purchase Agreement.
"COMPANY" shall have the meaning set forth in the preamble and
shall also include the Company's successors.
"DEPOSITARY" shall mean The Depository Trust Company, or any
other depositary appointed by the Company, PROVIDED, HOWEVER, that such
depositary must have an address in the Borough of Manhattan, in the
City of New York.
"EXCHANGE OFFER" shall mean the exchange offer by the Company
and the Guarantor of Exchange Securities (and related Guarantees) for
Registrable Securities pursuant to Section 2.1 hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under
the 1933 Act effected pursuant to Section 2.1 hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form or any successor form used for substantially the same
transaction), and all amendments and supplements to such registration
statement, including the Prospectus contained therein, all exhibits
thereto and all documents incorporated by reference therein.
"EXCHANGE PERIOD" shall have the meaning set forth in Section
2.1 hereof.
"EXCHANGE SECURITIES" shall mean collectively, the 6.875%
Notes due 2002 Series B, issued by the Company and the related
guarantees of the 6.875% Notes due 2002 Series B issued by the
Guarantor, containing terms identical to the Securities in all material
respects (except for references to certain interest rate provisions,
restrictions on transfers and restrictive legends), to be offered to
Holders of Securities in exchange for Registrable Securities pursuant
to the Exchange Offer.
"HOLDER" shall mean an Initial Purchaser, for so long as it
owns any Registrable Securities, and each of its successors, assigns
and direct and indirect transferees who become registered owners of
Registrable Securities under the Indenture and each Participating
Broker-Dealer that holds Exchange Securities for so long as such
Participating Broker-Dealer is required to deliver a prospectus meeting
the requirements of the 1933 Act in connection with any resale of such
Exchange Securities.
"INDENTURE" shall mean the Indenture relating to the
Securities and the Exchange Securities, dated as of June 9, 1998, as
supplemented by Supplemental Indenture No. 11, dated as of August 31,
1999, in each case among the Company, the Guarantor and The Bank of New
York, as trustee, as the same may be amended, supplemented, waived or
otherwise modified from time to time in accordance with the terms
thereof.
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"INITIAL PURCHASER" or "INITIAL PURCHASERS" shall have the
meaning set forth in the preamble.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of Outstanding (as defined in the Indenture)
Registrable Securities or each series of Registrable Securities as the
case may be; PROVIDED that whenever the consent or approval of Holders
of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company, the Guarantor
and other obligors on the Securities or the Guarantees or any Affiliate
(as defined in the Indenture) of the Company or the Guarantor shall be
disregarded in determining whether such consent or approval was given
by the Holders of such required percentage amount; PROVIDED FURTHER
that, when used in connection with the Shelf Registration Statement,
the term Majority Holders shall mean the Holders of a majority of the
aggregate principal amount of all series of Registrable Securities
participating therein or whose securities are being sold thereunder in
the particular case, as applicable.
"PARTICIPATING BROKER-DEALER" shall mean any of Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), X.X. Xxxxxx
Securities Inc., Xxxxxx Brothers Inc., Xxxxxx Xxxxxxx & Co.
Incorporated, Credit Suisse First Boston Corporation, Xxxxxxxxx, Lufkin
& Xxxxxxxx Securities Corporation, Xxxxxxx, Sachs & Co., Bear, Xxxxxxx
& Co. Inc., Banc of America Securities LLC, Chase Securities Inc.,
Commerzbank Capital Markets Corporation, Warburg Dillon Read LLC,
Xxxxxxx Xxxxx Xxxxxx Inc., The Xxxxxxxx Capital Group, L.P., and
Xxxxxxxx & Partners, L.P. and any other broker-dealer which makes a
market in the Securities and Guarantees and exchanges Registrable
Securities in the Exchange Offer for Exchange Securities.
"PERSON" shall mean an individual, partnership (general or
limited), corporation, limited liability company, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including any such prospectus supplement with respect to
the terms of the offering of any portion of the Registrable Securities
covered by a Shelf Registration Statement, and by all other amendments
and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference
therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the
preamble.
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"REGISTRABLE SECURITIES" shall mean, collectively, the
Securities and the Guarantees; PROVIDED, HOWEVER, that Securities and
Guarantees shall cease to be Registrable Securities when (i) a
Registration Statement with respect to such Securities and Guarantees
shall have been declared effective under the 1933 Act and such
Securities and Guarantees shall have been disposed of pursuant to such
Registration Statement, (ii) such Securities and Guarantees have been
sold to the public pursuant to Rule l44 (or any similar provision then
in force, but not Rule 144A) under the 1933 Act, (iii) such Securities
and Guarantees shall have ceased to be outstanding or (iv) the Exchange
Offer is consummated (except in the case of Securities and Guarantees
purchased from the Company and the Guarantors and continued to be held
by the Initial Purchasers or Securities which may not be exchanged in
the Exchange Offer).
"REGISTRATION EXPENSES" shall mean any and all expenses
incident to performance of or compliance by the Company and the
Guarantor with this Agreement, including without limitation: (i) all
SEC, stock exchange or National Association of Securities Dealers, Inc.
(the "NASD") registration and filing fees, including, if applicable,
the fees and expenses of any "qualified independent underwriter" (and
the reasonable fees and expenses of its counsel) that is required to be
retained by any holder of Registrable Securities in accordance with the
rules and regulations of the NASD, (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky laws
and compliance with the rules of the NASD (including reasonable fees
and disbursements of counsel for any underwriters or Holders in
connection with blue sky qualification of any of the Exchange
Securities or Registrable Securities and any filings with the NASD),
(iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this
Agreement, (iv) all fees and expenses incurred in connection with the
listing, if any, of any of the Registrable Securities on any securities
exchange or exchanges, (v) all rating agency fees, (vi) the fees and
disbursements of counsel for the Company and the Guarantor and of the
independent public accountants of the Company and the Guarantor,
including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, (vii) the
fees and expenses of the Trustee, and any escrow agent or custodian,
(viii) the reasonable fees and expenses of the Initial Purchasers in
connection with the Exchange Offer, including the reasonable fees and
expenses of one counsel to the Initial Purchasers in connection
therewith, (ix) the reasonable fees and disbursements of one special
counsel representing the Holders of Registrable Securities in
connection with the Shelf Registration Statement and (x) any fees and
disbursements of the underwriters customarily required to be paid
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by issuers or sellers of securities and the fees and expenses of any
special experts retained by the Company and the Guarantor in connection
with any Registration Statement, but excluding underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.
"REGISTRATION STATEMENT" shall mean any registration statement
of the Company and the Guarantor which covers any of the Exchange
Securities or Registrable Securities pursuant to the provisions of this
Agreement, and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently
performed by the United States Securities and Exchange Commission.
"SHELF REGISTRATION" shall mean a registration effected
pursuant to Section 2.2 hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf"
registration statement of the Company and the Guarantor pursuant to the
provisions of Section 2.2 of this Agreement which covers all of the
Registrable Securities on an appropriate form under Rule 415 under the
1933 Act, or any successor or similar rule that may be adopted by the
SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"TRUSTEE" shall mean the trustee with respect to the
Securities and the Guarantees under the Indenture.
2. REGISTRATION UNDER THE 1933 ACT.
2.1 EXCHANGE OFFER. The Company and the Guarantor shall, for
the benefit of the Holders, at the Company's and the Guarantor's cost, use their
reasonable best efforts to (A) prepare and, as soon as practicable but not later
than 120 days following the Closing Date, file with the SEC an Exchange Offer
Registration Statement on an appropriate form under the 1933 Act with respect to
a proposed Exchange Offer and the issuance and delivery to the Holders, in
exchange for the Registrable Securities, of a like principal amount of Exchange
Securities, (B) to cause the Exchange Offer Registration Statement to be
declared effective under the 1933 Act within 180 days of the Closing Date, (C)
keep the Exchange Offer Registration Statement effective until the
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closing of the Exchange Offer and (D) cause the Exchange Offer to be consummated
not later than 210 days following the Closing Date. The Exchange Securities will
be issued under the Indenture. Upon the effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantor shall promptly commence
the Exchange Offer, it being the objective of such Exchange Offer to enable each
Holder eligible and electing to exchange Registrable Securities for Exchange
Securities to transfer such Exchange Securities from and after their receipt
without any limitations or restrictions under the 1933 Act and under state
securities or blue sky laws.
Each Holder participating in the Exchange Offer shall be
required, as a condition to such participation, to represent in writing to the
Company that, at the time of the consummation of the Exchange Offer, such Holder
(a) is not an affiliate of the Company within the meaning of Rule 405 under the
1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired
directly from the Company for its own account, (c) acquired or will acquire the
Exchange Securities in the ordinary course of such Holder's business and (d) has
no arrangements or understandings with any Person to participate in the Exchange
Offer for the purpose of distributing the Exchange Securities.
In connection with the Exchange Offer, the Company and the
Guarantor shall:
(a) mail as promptly as practicable to each Holder a
copy of the Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and related
documents;
(b) keep the Exchange Offer open for acceptance for a
period of not less than 30 calendar days after the date notice thereof is mailed
to the Holders (or longer if required by applicable law) (such period referred
to herein as the "Exchange Period");
(c) utilize the services of the Depositary for the
Exchange Offer;
(d) permit Holders to withdraw tendered Registrable
Securities at any time prior to 5:00 p.m. (Eastern Standard Time), on the last
business day of the Exchange Period, by sending to the institution specified in
the notice, a telegram, telex, facsimile transmission or letter setting forth
the name of such Holder, the principal amount of Registrable Securities
delivered for exchange, and a statement that such Holder is withdrawing such
Holder's election to have such Securities and Guarantees exchanged;
(e) notify each Holder that any Registrable Security
not tendered will remain outstanding and continue to accrue interest, but will
not retain any rights under this Agreement (except in the case of the Initial
Purchasers and Participating Broker-Dealers as provided herein); and
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(f) otherwise comply in all respects with all
applicable laws relating to the Exchange Offer.
The Exchange Securities shall be issued under (i) the
Indenture or (ii) an indenture identical in all material respects to the
Indenture and which, in either case, has been qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), or is exempt from such
qualification and shall provide that the Exchange Securities shall not be
subject to the transfer restrictions set forth in the Indenture. The Indenture
or such indenture shall provide that the Exchange Securities and the Securities
having the same interest rate and maturity (and related Guarantees) shall vote
and consent together on all matters as one class and that none of the Exchange
Securities or the Securities having the same interest rate and maturity (and
related Guarantees) will have the right to vote or consent as a separate class
on any matter.
As soon as practicable after the close of the Exchange Offer
the Company and the Guarantor shall:
(i) accept for exchange all Registrable Securities
duly tendered and not validly withdrawn pursuant to the
Exchange Offer in accordance with the terms of the Exchange
Offer Registration Statement and the letter of transmittal
which shall be an exhibit thereto;
(ii) deliver, or cause to be delivered to the Trustee
for cancellation all Registrable Securities so accepted for
exchange; and
(iv) cause the Trustee promptly to authenticate and
deliver Exchange Securities to each Holder of Registrable
Securities so accepted for exchange in a principal amount
equal to the principal amount of the Registrable Securities of
such Holder so accepted for exchange.
Interest on each Exchange Security will accrue from the last
date on which interest was paid on the Registrable Securities surrendered in
exchange therefor or, if no interest has been paid on the Registrable
Securities, from the date of original issuance. The Exchange Offer shall not be
subject to any conditions, other than (i) that the Exchange Offer or the making
of any exchange by a Holder, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (ii) the due tendering of Registrable
Securities in accordance with the Exchange Offer, (iii) that each Holder of
Registrable Securities exchanged in the Exchange Offer shall have made the
representations set forth above in this Section 2.1 and shall have made such
other representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4 or other
appropriate form under the 1933 Act available and (iv) that no action or
proceeding shall have been instituted or threatened in any court or by or before
any governmental agency with respect to the Exchange Offer
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which, in the Company's and the Guarantor's judgment, would reasonably be
expected to impair the ability of the Company and the Guarantor to proceed with
the Exchange Offer. The Company and the Guarantor shall inform the Initial
Purchasers of the names and addresses of the Holders to whom the Exchange Offer
is made, and the Initial Purchasers shall have the right to contact such Holders
and otherwise facilitate the tender of Registrable Securities in the Exchange
Offer.
2.2 SHELF REGISTRATION. (i) If, because of any changes in law,
SEC rules or regulations or applicable interpretations thereof by the staff of
the SEC, the Company and the Guarantor are not permitted to effect the Exchange
Offer as contemplated by Section 2.1 hereof, (ii) if for any other reason the
Exchange Offer Registration Statement is not declared effective within 180 days
following the original issue of the Registrable Securities or the Exchange Offer
is not consummated within 210 days after the original issue of the Registrable
Securities, (iii) upon the request of any of the Initial Purchasers with respect
to Registrable Securities that are not eligible to be exchanged for Exchange
Notes in the Exchange Offer or the Initial Purchasers do not receive freely
tradeable Exchange Securities in the Exchange Offer or (iv) if a Holder known or
identified in writing to the Company (other than an Initial Purchaser) is not
permitted by applicable law to participate in the Exchange Offer or elects to
participate in the Exchange Offer but does not receive fully tradeable Exchange
Securities pursuant to the Exchange Offer, then in case of each of clauses (i)
through (iv) the Company and the Guarantor shall, at their cost:
(a) As promptly as practicable, file with the SEC,
and thereafter shall use their reasonable best efforts to
cause to be declared effective within 150 days after the
original issue of the Registrable Securities, a Shelf
Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by the
Majority Holders participating in the Shelf Registration and
set forth in such Shelf Registration Statement; PROVIDED,
HOWEVER, that no Holder shall be entitled to have Registrable
Securities held by it included in the Shelf Registration
Statement unless such Holder agrees in writing to be bound by
all of the provisions of this Agreement applicable to such
Holder and furnishes to the Company in writing such
information as the Company may reasonably request for
inclusion in the Shelf Registration Statement or any
Prospectus included therein.
(b) Use their reasonable best efforts to keep the
Shelf Registration Statement continuously effective in order
to permit the Prospectus forming part thereof to be usable by
Holders for a period of two years from the date the Shelf
Registration Statement is declared effective by the SEC, or
for such shorter period that will terminate when all
Registrable Securities
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covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement or cease to be
outstanding or otherwise to be Registrable Securities (the
"Effectiveness Period"); PROVIDED, HOWEVER, that the
Effectiveness Period in respect of the Shelf Registration
Statement shall be extended to the extent required to permit
dealers to comply with the applicable prospectus delivery
requirements of Rule 174 under the 1933 Act and as otherwise
provided herein.
(c) Notwithstanding any other provisions hereof, use
their reasonable best efforts to ensure that (i) any Shelf
Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any supplement thereto
complies in all material respects with the 1933 Act and the
rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and
(iii) any Prospectus forming part of any Shelf Registration
Statement, and any supplement to such Prospectus (as amended
or supplemented from time to time), does not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements, in light of the
circumstances under which they were made, not misleading.
The Company and the Guarantor shall not permit any securities
other than Registrable Securities to be included in the Shelf Registration
Statement. The Company and the Guarantor further agree, if necessary, to
supplement or amend the Shelf Registration Statement, as required by Section
3(b) below, and to furnish to the Holders of Registrable Securities copies of
any such supplement or amendment promptly after its being used or filed with the
SEC.
2.3 EXPENSES. The Company and the Guarantor shall pay all
Registration Expenses in connection with the registration pursuant to Section
2.1 or 2.2. Each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
2.4. EFFECTIVENESS. (a) The Company and the Guarantor will be
deemed not to have used their reasonable best efforts to cause the Exchange
Offer Registration Statement or the Shelf Registration Statement, as the case
may be, to become, or to remain, effective during the requisite period if the
Company or the Guarantor voluntarily takes any action that would, or omits to
take any action which omission would, result in any such Registration Statement
not being declared or remaining effective or in the
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Holders of Registrable Securities covered thereby not being able to exchange or
offer and sell such Registrable Securities during that period as and to the
extent contemplated hereby, unless such action is required by applicable law.
(b) An Exchange Offer Registration Statement pursuant
to Section 2.1 hereof or a Shelf Registration Statement pursuant to Section 2.2
hereof will not be deemed to have become effective unless it has been declared
effective by the SEC; PROVIDED, HOWEVER, that if, after it has been declared
effective, the offering of Registrable Securities pursuant to an Exchange Offer
Registration Statement or a Shelf Registration Statement is interfered with by
any stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court of competent jurisdiction, such Registration
Statement will be deemed not to have become effective during the period of such
interference, until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume.
2.5 INTEREST. The Indenture executed in connection with the
Securities will provide that in the event that either (a) the Exchange Offer
Registration Statement is not filed with the Commission on or prior to the 90th
calendar day following the date of original issue of the Securities, (b) the
Exchange Offer Registration Statement has not been declared effective on or
prior to the 150th calendar day following the date of original issue of the
Securities or (c) the Exchange Offer is not consummated or a Shelf Registration
Statement is not declared effective, in either case, on or prior to the 180th
calendar day following the date of original issue of the Securities (each such
event referred to in clauses (a) through (c) above, a "Registration Default"),
the interest rate borne by the Securities shall be increased ("Additional
Interest") by one-quarter of one percent per annum upon the occurrence of each
Registration Default, which rate will increase by one quarter of one percent
each 90-day period that such Additional Interest continues to accrue under any
such circumstance, provided that the maximum aggregate increase in the interest
rate will in no event exceed one percent (1%) per annum; PROVIDED, HOWEVER, that
no Additional Interest shall be payable if the Exchange Offer Registration
Statement is not filed or declared effective or the Exchange Offer is not
consummated on account of the reasons set forth in clause (i) of the first
paragraph of this Section 2.2 (it being understood, however, that in any such
case the Company and the Guarantor shall be obligated to file a Shelf
Registration Statement and Additional Interest shall be payable if the Shelf
Registration Statement is not declared effective in accordance with clause (c)),
that no Additional Interest shall be payable if the Shelf Registration Statement
is not declared effective as set forth above because the request under clause
(iii) of Section 2.2 or notice under clause (iv) of such paragraph was not made
on a timely basis; and PROVIDED, FURTHER, that Additional Interest shall only be
payable in case the Shelf Registration Statement is not declared effective as
aforesaid with respect to Securities that have the right to be included, and
whose inclusion has been requested, in the Shelf Registration Statement.
Following the cure of all Registration
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Defaults the accrual of Additional Interest will cease and the interest rate
will revert to the original rate.
If the Shelf Registration Statement is declared effective but
shall thereafter become unusable by the Holders for any reason (whether pursuant
to the last paragraph of Section 3 or otherwise),, and the aggregate number of
days in any consecutive twelve-month period for which the Shelf Registration
Statement shall not be usable exceeds 30 days in the aggregate, then the
interest rate borne by the Securities included in the Registration Statement
will be increased by 0.25% per annum of the principal amount of the Securities
for the first 90-day period (or portion thereof) beginning on the 31st such date
that such Shelf Registration Statement ceases to be usable, which rate shall be
increased by an additional 0.25% per annum of the principal amount of the
Securities at the beginning of each subsequent 90-day period, provided that the
maximum aggregate increase in the interest rate will in no event exceed one
percent (1%) per annum. Any amounts payable under this paragraph shall also be
deemed "Additional Interest" for purposes of this Agreement. Upon the Shelf
Registration Statement once again becoming usable, the interest rate borne by
such Securities will be reduced to the original interest rate if the Company is
otherwise in compliance with this Agreement at such time. Additional Interest
shall be computed based on the actual number of days elapsed in each 90-day
period in which the Shelf Registration Statement is unusable.
The Company and the Guarantor shall notify the Trustee within
five business days after each and every date on which an event occurs in respect
of which Additional Interest is required to be paid (an "Event Date").
Additional Interest shall be paid by depositing with the Trustee, in trust, for
the benefit of the Holders of the Securities entitled to receive the interest
payment, on or before the applicable semiannual interest payment date,
immediately available funds in sums sufficient to pay the Additional Interest
then due. The Additional Interest due shall be payable on each interest payment
date to the record Holder of Securities entitled to receive the interest payment
to be paid on such date as set forth in the Indenture. Each obligation to pay
Additional Interest shall be deemed to accrue from and including the day
following the applicable Event Date.
3. REGISTRATION PROCEDURES.
In connection with the obligations of the Company and the
Guarantor with respect to Registration Statements pursuant to Sections 2.1 and
2.2 hereof, the Company and the Guarantor shall:
(a) prepare and file with the SEC a Registration Statement,
within the relevant time period specified in Section 2, on the appropriate form
under the 1933 Act, which form (i) shall be selected by the Company and the
Guarantor, (ii) shall, in the case
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of a Shelf Registration, be available for the sale of the Registrable Securities
by the selling Holders thereof, (iii) shall comply as to form in all material
respects with the requirements of the applicable form and include or incorporate
by reference all financial statements required by the SEC to be filed therewith
or incorporated by reference therein, and (iv) shall comply in all respects with
the requirements of Regulation S-T under the 1933 Act, and use their reasonable
best efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary
under applicable law to keep such Registration Statement effective for the
applicable period; and cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provision then in force) under the 1933 Act and comply with the
provisions of the 1933 Act, the 1934 Act and the rules and regulations
thereunder applicable to them with respect to the disposition of all securities
covered by each Registration Statement during the applicable period in
accordance (in the case of a Shelf Registration) with the intended method or
methods of distribution by the selling Holders thereof (including sales by any
Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities, at least five business days prior to filing,
that a Shelf Registration Statement with respect to the Registrable Securities
is being filed and advising such Holders that the distribution of Registrable
Securities will be made in accordance with the method selected by the Majority
Holders participating in the Shelf Registration; (ii) furnish to each Holder of
Registrable Securities and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter may
reasonably request, including financial statements and schedules and, if the
Holder so requests, all exhibits, in order to facilitate the public sale or
other disposition of the Registrable Securities; and (iii) hereby consent to the
use of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Registrable Securities in connection with the offering and
sale of the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(d) use their reasonable best efforts to register or qualify
the Registrable Securities under all applicable state securities or "blue sky"
laws of such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request by the time the applicable
Registration Statement is declared effective by the SEC; PROVIDED, HOWEVER, that
none of the Company and the Guarantor shall be required to
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(i) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), or (ii) take any action which would subject it to general service
of process or taxation in any such jurisdiction where it is not then so subject;
(e) notify promptly each Holder of Registrable Securities
included under a Shelf Registration or any Participating Broker-Dealer who has
notified the Company and the Guarantor that it is utilizing the Exchange Offer
Registration Statement as provided in paragraph (f) below and, if requested by
such Holder or Participating Broker-Dealer, confirm such advice in writing
promptly (i) when a Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective, (ii) of any
request by the SEC or any state securities authority for post-effective
amendments and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, (iv) in the case of a Shelf Registration,
if, between the effective date of such Registration Statement and the closing of
any sale of Registrable Securities covered thereby, the representations and
warranties of the Company and the Guarantor contained in any underwriting
agreement, securities sales agreement or other similar agreement, if any,
relating to the offering cease to be true and correct in all material respects,
(v) of the happening of any event or the discovery of any facts during the
period a Shelf Registration Statement is effective which makes any statement
made in such Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements therein not
misleading, (vi) of the receipt by the Company or the Guarantor of any
notification with respect to the suspension of the qualification of the
Registrable Securities or the Exchange Securities, as the case may be, for sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose and (vii) of any determination by the Company or the Guarantor that a
post-effective amendment to such Registration Statement would be appropriate;
(f) in the case of the Exchange Offer Registration Statement
(i) include in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution" which section shall be reasonably acceptable to Xxxxxxx
Xxxxx on behalf of the Participating Broker-Dealers, and which shall contain a
summary statement of the positions taken or policies made by the staff of the
SEC with respect to the potential "underwriter" status of any broker-dealer that
holds Registrable Securities acquired for its own account as a result of
market-making activities or other trading activities and that will be the
beneficial owner (as defined in Rule 13d-3 promulgated under the 0000 Xxx) of
Exchange Securities to be received by such broker-dealer in the Exchange Offer,
whether such positions or policies have been publicly disseminated by the staff
of the
-13-
SEC or such positions or policies, in the reasonable judgment of Xxxxxxx Xxxxx
on behalf of the Participating Broker-Dealers and its counsel, represent the
prevailing views of the staff of the SEC, including a statement that any such
broker-dealer who receives Exchange Securities for Registrable Securities
pursuant to the Exchange Offer may be deemed a statutory underwriter and must
deliver a prospectus meeting the requirements of the 1933 Act in connection with
any resale of such Exchange Securities, (ii) furnish to each Participating
Broker-Dealer who has delivered to the Company and the Guarantor the notice
referred to in Section 3(e), without charge, as many copies of each Prospectus
included in the Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such Participating
Broker-Dealer may reasonably request, (iii) hereby consent to the use of the
Prospectus forming part of the Exchange Offer Registration Statement or any
amendment or supplement thereto, by any Person subject to the prospectus
delivery requirements of the SEC, including all Participating Broker-Dealers, in
connection with the sale or transfer of the Exchange Securities covered by the
Prospectus or any amendment or supplement thereto, provided any such Person has
provided the Company in writing with any information required by Item 507 or
Item 508 of Regulation S-K under the 1933 Act (or any similar provision then in
force) for inclusion in the Prospectus contained in the Exchange Offer
Registration Statement, and (iv) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order to participate in
the Exchange Offer (x) the following provision (or any other provision requested
by Xxxxxxx Xxxxx on behalf of the Participating Broker-Dealers with respect to
similar matters):
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of
Exchange Securities received in respect of such Registrable
Securities pursuant to the Exchange Offer;" and
(y) a statement to the effect that by a broker-dealer making the acknowledgment
described in clause (x) and by delivering a Prospectus in connection with the
exchange of Registrable Securities, the broker-dealer will not be deemed to
admit that it is an underwriter within the meaning of the 1933 Act; and
(g) (i) in the case of an Exchange Offer, furnish counsel for
the Initial Purchasers and (ii) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Securities copies of any comment letters
received from the SEC or any other request by the SEC or any state securities
authority for amendments or supplements to a Registration Statement and
Prospectus or for additional information;
-14-
(h) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(i) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, and each underwriter, if any, without charge,
at least one conformed copy of each Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
(without documents incorporated therein by reference and all exhibits thereto,
unless requested in writing);
(j) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and enable such Registrable Securities to
be in such denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holders or the underwriters, if any, may
reasonably request at least three business days prior to the closing of any sale
of Registrable Securities;
(k) in the case of a Shelf Registration, upon the occurrence
of any event or the discovery of any facts, each as contemplated by Sections
3(e)(v) and 3(e)(vi) hereof, as promptly as practicable after the occurrence of
such an event, use their best efforts to prepare a supplement or post-effective
amendment to the Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable Securities
or Participating Broker-Dealers, such Prospectus will not contain at the time of
such delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or will remain so
qualified. At such time as such public disclosure is otherwise made or the
Company determines that such disclosure is not necessary, in each case to
correct any misstatement of a material fact or to include any omitted material
fact, the Company agrees promptly to notify each Holder of such determination
and to furnish each Holder such number of copies of the Prospectus as amended or
supplemented, as such Holder may reasonably request;
(l) in the case of a Shelf Registration, within a reasonable
time prior to the filing of any Registration Statement, any Prospectus, any
amendment to a Registration Statement or amendment or supplement to a Prospectus
or any document which is to be incorporated by reference into a Registration
Statement or a Prospectus after initial filing of a Registration Statement,
provide copies of such document to the Initial Purchasers on behalf of such
Holders; and make representatives of the Company and the Guarantor as shall be
reasonably requested by the Holders of Registrable Securities, or the Initial
Purchasers on behalf of such Holders, available for discussion of such document;
-15-
(m) use their reasonable best efforts to obtain a CUSIP number
for all Exchange Securities or Registrable Securities, as the case may be, not
later than the effective date of a Registration Statement, and provide the
Trustee with printed certificates for the Exchange Securities or the Registrable
Securities, as the case may be, in a form eligible for deposit with the
Depositary;
(n) (i) cause the Indenture to be qualified under the TIA in
connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be, (ii) cooperate with the Trustee to effect such
changes to the Indenture as may be required for the Indenture to be so qualified
in accordance with the terms of the TIA, to the extent that such changes may be
made without the consent of the Holders or the holders of any other securities
issued under the Indenture and (iii) execute, and use their reasonable best
efforts to cause the Trustee to execute, all documents as may be required to
effect such changes, and all other forms and documents required to be filed with
the SEC to enable the Indenture to be so qualified in a timely manner;
(o) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and appropriate
actions in order to expedite or facilitate the disposition of such Registrable
Securities and in such connection whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration:
(i) make such representations and warranties to the
Holders of such Registrable Securities and the underwriters,
if any, in form, substance and scope as are customarily made
by issuers to underwriters in similar underwritten offerings
as may be reasonably requested by them;
(ii) obtain opinions of counsel to the Company and
the Guarantor and updates thereof (which counsel and opinions
(in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, or, if
there are no underwriters, the Majority Holders) addressed to
the underwriters, if any, or, if there are no underwriters,
the selling Holders of Registrable Securities covering the
matters customarily covered in opinions requested in sales of
securities or underwritten offerings and such other matters as
may be reasonably requested by such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates
thereof from the Company's and the Guarantor's independent
certified public accountants (and, if necessary, any other
independent certified public accountants of any subsidiary of
the Company or of any business acquired by the Company for
which financial statements are, or are required to be,
included in the Registration Statement) addressed to the
underwriters, if any, and if there
-16-
are no underwriters, use reasonable efforts to have such
letter addressed to the selling Holders of Registrable
Securities (to the extent consistent with Statement on
Auditing Standards No. 72 of the American Institute of
Certified Public Accounts), such letters to be in customary
form and covering matters of the type customarily covered in
"cold comfort" letters to underwriters in connection with
similar underwritten offerings;
(iv) if so requested by the Majority Holders, enter
into a securities sales agreement with the Holders and an
agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the
purpose of soliciting purchases of Registrable Securities,
which agreement shall be in form, substance and scope
customary for similar offerings;
(v) if an underwriting agreement is entered into,
cause the same to set forth indemnification provisions and
procedures substantially equivalent to the indemnification
provisions and procedures set forth in Section 4 hereof with
respect to the underwriters and all other parties to be
indemnified pursuant to said Section or, at the request of any
underwriters, in the form customarily provided to such
underwriters in similar types of transactions; provided such
underwriting agreement shall contain customary provisions
regarding indemnification of the Company and the Guarantor
with the respect to information provided by the underwriters;
and
(vi) deliver such documents and certificates as may
be reasonably requested by the managing underwriter or, if
there are no underwriters, the Majority Holders and as are
customarily delivered in similar offerings, if any.
The above shall be done at (i) the effectiveness of such Registration Statement
(and, if requested by the Majority Holders, each post-effective amendment
thereto) and (ii) each closing under any underwriting or similar agreement as
and to the extent required thereunder. In the case of any underwritten offering,
the Company and the Guarantor shall provide written notice to the Holders of all
Registrable Securities whose Securities are included in the Shelf Registration
Statement of such underwritten offering at least 15 days prior to the filing of
a prospectus supplement for such underwritten offering. Such notice shall (x)
offer each such Holder the right to participate in such underwritten offering,
(y) specify a date, which shall be no earlier than 10 days following the date of
such notice, by which such Holder must inform the Company of its intent to
participate in such underwritten offering and (z) include the instructions such
Holder must follow in order to participate in such underwritten offering;
-17-
(p) in the case of a Shelf Registration or if a Prospectus is
required to be delivered by any Participating Broker-Dealer in the case of an
Exchange Offer, make available for inspection by representatives of the Majority
Holders of the Registrable Securities, any underwriters participating in any
disposition pursuant to a Shelf Registration Statement, any Participating
Broker-Dealer and any counsel or accountant retained by any of the foregoing,
all financial and other records, pertinent corporate documents and properties of
the Company and the Guarantor reasonably requested by any such persons, and
cause the respective officers, directors, employees, and any other agents of the
Company and the Guarantor to supply all information reasonably requested by any
such representative, underwriter, special counsel or accountant in connection
with a Registration Statement, and make such representatives of the Company and
the Guarantor available for discussion of such documents as shall be reasonably
requested by the Initial Purchasers, in each case as shall be customary and
reasonably necessary to enable such Persons to exercise applicable due diligence
responsibilities; PROVIDED that any information that is designated by the
Company or the Guarantor in good faith, in writing, as confidential at the time
of delivery of such information shall be kept confidential by such Persons,
unless such information becomes available to the public generally not as a
result of a breach of this Agreement, and unless disclosure is required in
connection with a court proceeding or required by law, in which case prior to
such disclosure the Company and the Guarantor shall be given such notice as
shall be reasonably practicable in the circumstances to enable the Company or
the Guarantor to take action to prevent disclosure of such information;
(q) (i) in the case of an Exchange Offer Registration
Statement, within a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any amendment to
an Exchange Offer Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Initial Purchasers and their
counsel and make such changes in any such document prior to the filing thereof
as the Initial Purchasers or their counsel may reasonably request and, except as
otherwise required by applicable law, not file any such document in a form to
which the Initial Purchasers or their counsel shall not have previously been
advised and furnished a copy of or to which the Initial Purchasers shall
reasonably object, and make the representatives of the Company and the Guarantor
available for discussion of such documents as shall be reasonably requested by
the Initial Purchasers; and
(ii) in the case of a Shelf Registration, within a
reasonable time prior to filing any Shelf Registration Statement, any Prospectus
forming a part thereof, any amendment to such Shelf Registration Statement or
amendment or supplement to such Prospectus, provide copies of such document to
the Holders of Registrable Securities participating therein, to the Initial
Purchasers, to counsel for the Holders of Registrable Securities participating
therein selected by the Majority Holders (all
-18-
references to counsel for the Holders of Registrable Securities in this
paragraph being references to such counsel) and to the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any, make
such changes in any such document prior to the filing thereof as the Initial
Purchasers, the counsel to the Holders of Registrable Securities participating
therein or the underwriter or underwriters reasonably request and not file any
such document in a form to which the Initial Purchasers, counsel for the Holders
of Registrable Securities or any underwriter shall not have previously been
advised and furnished a copy of or to which the Initial Purchasers, counsel to
the Holders of Registrable Securities or any underwriter shall reasonably
object, and make the representatives of the Company and the Guarantor available
for discussion of such document as shall be reasonably requested by the Initial
Purchasers, counsel for the Holders of Registrable Securities or any
underwriter.
(r) in the case of a Shelf Registration, use their reasonable
best efforts to cause all Registrable Securities to be listed on any securities
exchange on which similar debt securities issued by the Company are then listed
if requested by the Majority Holders, or if requested by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any;
(s) in the case of a Shelf Registration, use their reasonable
best efforts to cause the Registrable Securities to be rated by the appropriate
rating agencies, if so requested by the Majority Holders, or if requested by the
underwriter or underwriters of an underwritten offering of Registrable
Securities, if any;
(t) otherwise comply with all applicable rules and regulations
of the SEC and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 promulgated
thereunder;
(u) cooperate and assist in any filings required to be made
with the NASD and, in the case of a Shelf Registration, in the performance of
any due diligence investigation by any underwriter and its counsel (including
any "qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD); and
(v) upon consummation of an Exchange Offer, obtain (i) a
customary opinion of counsel to the Company and the Guarantor addressed to the
Trustee for the benefit of all Holders of Registrable Securities participating
in the Exchange Offer, and which includes an opinion that (A) each of the
Company and the Guarantor has duly authorized, executed and delivered the
Exchange Securities and the related indenture, and (B) each of the Exchange
Securities and related indenture constitute legal, valid and binding obligations
of each of the Company and the Guarantor, enforceable against the
-19-
Company and the Guarantor in accordance with its respective terms (with
customary exceptions) and (ii) an officers' certificate containing the
certifications substantially similar to those set forth in Section 5(c) of the
Purchase Agreement.
In the case of a Shelf Registration Statement, each Holder
agrees that, upon receipt of any notice from the Company and the Guarantor of
the happening of any event or the discovery of any facts, each of the kind
described in Section 3(e)(v) and 3(e)(vi) hereof, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to a Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(k) hereof, and, if so directed by
the Company and the Guarantor, such Holder will deliver to the Company and the
Guarantor (at their expense) all copies in such Holder's possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice.
If any of the Registrable Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
underwriter or underwriters and manager or managers that will manage such
offering will be selected by the Majority Holders of all such Registrable
Securities included in such offering and shall be acceptable to the Company and
the Guarantor. No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such underwriting arrangements.
The Company shall be entitled for a period of time not to
exceed 30 consecutive days in any one instance or 60 days in the aggregate
during any consecutive twelve-month period, to require that Holders refrain from
effecting any distribution of their Registrable Securities pursuant to the Shelf
Registration Statement if the Company or the Guarantor in its reasonable good
faith judgment determines that, in accordance with its understanding of the
disclosure requirements of applicable securities law, such distribution would
require disclosure of any financing (other than an underwritten secondary
offering of any securities of the Company or the Guarantor), acquisition,
corporate reorganization or other transaction or development involving the
Company, the Guarantor or any of their subsidiaries that is or would be material
to the Company and that, in the reasonable good faith business judgment of the
Company or the Guarantor, such disclosure would not at that time be in the best
interests of the Company or the Guarantor (a "Material Development Election")
provided that any period during which the Company requires Holders to refrain
from disposing of their Registrable Securities due to a Material Event Election
(an "Election Period") shall be deemed to
-20-
trigger the obligation of the Company to pay Additional Interest in accordance
with the second paragraph of Section 2.5 to the extent that such Election
Period, together with all other days that the Shelf Registration Statement has
become unusable in any consecutive twelve-month period, exceeds 30 days in the
aggregate. The Company shall, as promptly as practicable, give the Holders whose
Securities are included in the Shelf Registration Statement written notice of
any such Material Development Election. If such Holders have been required to
refrain from disposing of their Registrable Securities as a result of a Material
Development Election, the Company shall, as promptly as practicable following
the determination that the Holders may recommence such sales, notify such
Holders in writing of such determination but in any event no later than the end
of such 30-day period in any one case or 60-day period in the aggregate.
4. INDEMNIFICATION; CONTRIBUTION.
(a) The Company and the Guarantor, jointly and severally,
agree to indemnify and hold harmless the Initial Purchasers, each Holder, each
Participating Broker-Dealer, each Person who participates as an underwriter (any
such Person being an "Underwriter") and each Person, if any, who controls any
Holder or Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement (or any amendment
or supplement thereto) pursuant to which Exchange Securities
or Registrable Securities were registered under the 1933 Act,
including all documents incorporated therein by reference, or
the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or arising out of any
untrue statement or alleged untrue statement of a material
fact contained in any Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject
to Section 4(d) below) any such settlement is effected with
the written consent of the Company and the Guarantor; and
-21-
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel
chosen by any indemnified party), reasonably incurred in
investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any
such expense is not paid under subparagraph (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company and the
Guarantor by the Holder, Participating Broker-Dealer or Underwriter expressly
for use in a Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto); and PROVIDED FURTHER that this
indemnity agreement shall not, with respect to a Shelf Registration Statement,
if applicable, with respect to any preliminary prospectus, inure to the benefit
of any Underwriter (or to the benefit of any Person controlling such
Underwriter) from whom the Person asserting any such losses, liabilities,
claims, damages or expenses purchased Registrable Securities if such untrue
statement or omission or alleged untrue statement or omission made in a
preliminary prospectus is eliminated or remedies in the Prospectus (as amended
or supplemented if the Company and the Guarantor shall have furnished amendments
or supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such Person at or
prior to the written confirmation of the sale of such Registrable Securities to
such Person.
(b) Each Holder severally, but not jointly, agrees to
indemnify and hold harmless the Company, the Guarantor, the Initial Purchasers,
each Underwriter and the other selling Holders, and each of their respective
directors and officers, and each Person, if any, who controls the Company, the
Guarantor, the Initial Purchasers, any Underwriter or any other selling Holder
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 4(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Shelf Registration Statement (or any amendment thereto) or any
Prospectus included therein (or any amendment or supplement thereto) in reliance
upon and in conformity with written information with respect to such Holder
furnished to the Company by such Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or such Prospectus (or any
amendment or supplement thereto); PROVIDED, HOWEVER, that no such Holder shall
be liable for any claims hereunder in excess
-22-
of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure so to notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. The
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any other the indemnifying party may designate in such action or
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the contrary, (ii) the
indemnifying party has failed within a reasonable time to retain counsel
reasonably satisfactory to the indemnified party or (iii) the named parties in
any such proceeding (including impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. In no event shall the indemnifying party or parties be liable for
the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 4 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such
-23-
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement unless the
indemnifying party in good faith shall be contesting the reasonableness of such
fees and expenses (but only to the extent so contested) or the entitlement of
the indemnified party to indemnification under the terms of this Section. 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.
(e) If the indemnification provided for in this Section 4 is
for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, in such proportion as is
appropriate to reflect the relative fault of the Company and the Guarantor on
the one hand and the Initial Purchasers, the Holders, the Participating
Broker-Dealers and/or the Underwriters each on the other hand in connection with
the statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company and the Guarantor on the one hand and
the Initial Purchasers, the Holders, the Participating Broker-Dealers and/or the
Underwriters each on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company and the Guarantor, the Holders, the
Participating Broker-Dealers and/or the Underwriters or the Initial Purchasers
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, the Guarantor, the Initial Purchasers, the Holders, the
Participating Broker-Dealers and/or the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 4 were determined by
pro rata allocation (even if the Initial Purchasers, the Holders, the
Participating Broker-Dealers and/or the Underwriters 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 above in this Section 4. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 4 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any
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governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 4, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities sold by it were offered exceeds the amount
of any damages which such Initial Purchaser has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission.
No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls an
Initial Purchaser, Holder Participating Broker-Dealer or Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as such Initial Purchaser or Holder, and each
director of the Company and such Guarantor, as the case may be, and each Person,
if any, who controls the Company and such Guarantor, as the case may be, within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Initial Purchasers'
respective obligations to contribute pursuant to this Section 4 are several in
proportion to the principal amount of Securities set forth opposite their
respective names in Schedules I-A, I-B, I-C and I-D to the Purchase Agreement
and not joint.
5. MISCELLANEOUS.
5.1 Rule 144 and Rule 144A. For so long as the Guarantor is
subject to the reporting requirements of Section 13 or 15 of the 1934 Act, the
Company and the Guarantor covenant that the Guarantor will file the reports
required to be filed by it under the 1933 Act and Section 13(a) or 15(d) of the
1934 Act and the rules and regulations adopted by the SEC thereunder. If the
Guarantor ceases to be so required to file such reports, the Company and the
Guarantor covenant that the Guarantor will upon the request of any Holder of
Registrable Securities (a) make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the 1933 Act, (b) deliver
such information to a prospective purchaser as is necessary to permit sales
pursuant to Rule 144A under the 1933 Act to the extent required by the
securities laws, and (c) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to enable
such Holder to sell its Registrable Securities without registration under the
1933 Act within the limitation of the exemptions provided by (i) Rule 144 under
the 1933 Act, as such Rule may be amended from time to time, (ii) Rule 144A
under the 1933 Act, as such Rule may be amended from time to
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time, or (iii) any similar rules or regulations hereafter adopted by the SEC.
Upon the request of any Holder of Registrable Securities, the Company and the
Guarantor will deliver to such Holder a written statement as to whether they
have complied with such requirements.
5.2 NO INCONSISTENT AGREEMENTS. The Company and the Guarantor
have not entered into, and the Company and the Guarantor will not after the date
of this Agreement enter into, any agreement which is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with the rights granted to the
holders of the Company's and the Guarantor's other issued and outstanding
securities under any such agreements.
5.3 AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company and the Guarantor have obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or departure.
5.4 NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder to
the Company and the Guarantor by means of a notice given in accordance with the
provisions of this Section 5.4, which address initially is the address set forth
in the Purchase Agreement with respect to the Initial Purchasers; and (b) if to
the Company and the Guarantor, initially at the Company's address set forth in
the Purchase Agreement, and thereafter at such other address of which notice is
given in accordance with the provisions of this Section 5.4.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; two
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the person giving the same to the Trustee
under the Indenture, at the address specified in such Indenture.
5.5 SUCCESSOR AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties,
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including, without limitation and without the need for an express assignment,
subsequent Holders; PROVIDED that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Registrable Securities in violation
of the terms of the Purchase Agreement or the Indenture. If any transferee of
any Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held subject
to all of the terms of this Agreement, and by taking and holding such
Registrable Securities such person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement,
including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such person shall be entitled to receive
the benefits hereof.
5.6 THIRD PARTY BENEFICIARIES. The Initial Purchasers (even if
the Initial Purchasers are not Holders of Registrable Securities) shall be third
party beneficiaries to the agreements made hereunder between the Company and the
Guarantor, on the one hand, and the Holders, on the other hand, and shall have
the right to enforce such agreements directly to the extent they deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made under this Registration Rights Agreement
between the Company and the Guarantor, on the one hand, and the Initial
Purchasers, on the other hand, and shall have the right to enforce such
agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights hereunder.
5.7. SPECIFIC ENFORCEMENT. Without limiting the remedies
available to the Initial Purchasers and the Holders, the Company and the
Guarantor acknowledge that any failure by the Company and the Guarantor to
comply with their obligations under Sections 2.1 through 2.4 hereof may result
in material irreparable injury to the Initial Purchasers or the Holders for
which there is no adequate remedy at law, that it would not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Company's and the Guarantor's obligations
under Sections 2.1 through 2.4 hereof.
5.8. RESTRICTION ON RESALES. Until the expiration of two years
after the original issuance of the Securities and the Guarantee, the Company and
the Guarantor will not, and will cause their "affiliates" (as such term is
defined in Rule 144(a)(1) under the 0000 Xxx) not to, resell any Securities and
Guarantee which are "restricted securities" (as such term is defined under Rule
144(a)(3) under the 0000 Xxx) that have been reacquired by any of them and shall
immediately upon any purchase of any such Securities and Guarantees submit such
Securities and Guarantees to the Trustee for cancellation.
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5.9 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.
5.10 HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.12 SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
5.13 JURISDICTIONAL MATTERS. Each of the Company and the
Guarantor (i) agrees that any legal suit, action or proceeding brought by any
party to enforce any rights under or with respect to this Agreement or any other
document in respect thereof or the transactions contemplated hereby or thereby
may be instituted in any state or federal court in The City of New York, State
of New York, U.S.A., (ii) irrevocably waives to the fullest extent permitted by
law any objection which it may now or hereafter have to the laying of venue of
any such suit, action or proceeding, (iii) irrevocably waives to the fullest
extent permitted by law any claim that and agrees not to claim or plead in any
court that any such action, suit or proceeding brought in such court has been
brought in an inconvenient forum and (iv) irrevocably submits to the
non-exclusive jurisdiction of any such court in any such suit, action or
proceeding or for recognition and enforcement of any judgment in respect
thereof.
Each of the Company and the Guarantor hereby irrevocably and
unconditionally designates and appoints CT Corporation System, 0000 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, X.X.X. (and any successor entity), as its authorized
agent to receive and forward on its behalf service of any and all process which
may be served in any such suit, action or proceeding in any such court and
agrees that service of process upon CT Corporation shall be deemed in every
respect effective service of process upon it in any such suit, action or
proceeding and shall be taken and held to be valid personal service upon it.
Said designation and appointment shall be irrevocable. Nothing in this Section
5.13 shall affect the right of Initial Purchasers, their affiliates or any
indemnified party to serve process in any manner permitted by law or limit the
right of the Initial
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Purchasers, their affiliates or any indemnified party to bring proceedings
against the Company or the Guarantor in the courts of any jurisdiction or
jurisdictions. Each of the Company and the Guarantor further agrees to take any
and all action, including the execution and filing of any and all such documents
and instruments, as may be necessary to continue such designation and
appointment of CT Corporation in full force and effect so long as the Securities
and the Guarantees are outstanding but in no event for a period longer than five
years from the date of this Agreement. Each of the Company and Guarantor hereby
irrevocably and unconditionally authorizes and directs CT Corporation to accept
such service on its behalf. If for any reason CT Corporation ceases to be
available to act as such, each of the Company and Guarantor agrees to designate
a new agent in New York City on the terms and for the purposes of this provision
reasonably satisfactory to the Underwriters.
To the extent that either the Company or the Guarantor has or
hereafter may acquire any immunity from jurisdiction of any court (including,
without limitation, any court in the United States, the State of New York,
Luxembourg, Bermuda or any political subdivision thereof) or from any legal
process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property or assets, this Agreement, or any other documents or actions to
enforce judgments in respect of any thereof, it hereby irrevocably waives such
immunity, and any defense based on such immunity, in respect of its obligations
under the above-referenced documents and the transactions contemplated thereby,
to the extent permitted by law.
5.14. JUDGMENT CURRENCY. If pursuant to a judgment or order
being made or registered against the Company or the Guarantor, any payment under
or in connection with this Agreement to a Person is made or satisfied in a
currency (the "Judgment Currency") other than in United States dollars then, to
the extent that the payment (when converted into United States dollars at the
rate of exchange on the date of payment or, if it is not practicable for such
Person to purchase United States dollars with the Judgment Currency on the date
of payment, at the rate of exchange as soon thereafter as it is practicable for
it to do so) actually received by such Person falls short of the amount due
under the terms of this Agreement, the Company or the Guarantor shall, to the
extent permitted by law, as a separate and independent obligation, indemnify and
hold harmless such Person against the amount of such short fall and such
indemnity shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. For the purpose of this Section, "rate of
exchange" means the rate at which the Person is able on the relevant date to
purchase United States dollars with the Judgment Currency and shall take into
account any premium and other costs of exchange.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
TYCO INTERNATIONAL GROUP S.A.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
TYCO INTERNATIONAL LTD.
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
& Chief Financial Officer
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Confirmed and accepted as
of the date first above
written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. Xxxxxx Securities Inc.
Xxxxxx Brothers Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxxxx, Sachs & Co.
Bear, Xxxxxxx & Co. Inc.
Banc of America Securities LLC
Chase Securities Inc.
Commerzbank Capital Markets Corporation
Warburg Dillon Read LLC
Xxxxxxx Xxxxx Xxxxxx Inc.
The Xxxxxxxx Capital Group, X.X.
Xxxxxxxx & Partners, L.P.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Authorized Signatory
For itself and on behalf of the other Initial Purchasers.
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