REGISTRATION RIGHTS AGREEMENT
EXHIBIT 4.2
This
REGISTRATION RIGHTS AGREEMENT, dated December 23, 2009 (the “Agreement”), is
entered into by and among GXS Worldwide, Inc. (the “Company”), the
guarantors listed in Schedule 1 hereto (the “Guarantors”) and the
several initial purchasers listed in Schedule 2 hereto (the “Initial
Purchasers”).
The
Company, the Guarantors and the Initial Purchasers are parties to the Purchase
Agreement dated December 17, 2009 (the “Purchase Agreement”),
which provides for the sale by the Company to the Initial Purchasers of
$785,000,000 in aggregate principal amount of 9¾% Senior Secured Notes due 2015
of the Company (the “Securities”), which
will be guaranteed on a secured senior basis by each of the Guarantors. As an
inducement to the Initial Purchasers to enter into the Purchase Agreement, the
Company and the Guarantors have agreed to provide to the Initial Purchasers and
their direct and indirect transferees the registration rights set forth in this
Agreement. The execution and delivery 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 terms shall have the following meanings:
“Additional Guarantor”
shall mean any subsidiary of the Company that executes a Subsidiary Guarantee
under the Indenture after the date of this Agreement.
“Agreement” shall have
the meaning set forth in the preamble.
“Business Day” shall
mean any day that is not a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to remain
closed.
“Company” shall have
the meaning set forth in the preamble and shall also include any successor
entity.
“Entitled Securities”
shall mean the Securities; provided that such Securities shall cease to be
Entitled Securities upon the earliest to occur of: (i) the date on which
such Security has been exchanged by a Person other than a broker-dealer for an
Exchange Security in the Exchange Offer; (ii) following the exchange by a
broker-dealer in the Exchange Offer of a Security for an Exchange Security, the
date on which such Exchange Security is sold to a purchaser who receives from
such broker-dealer on or prior to the date of such sale a copy of the Prospectus
contained in the Exchange Offer Registration Statement; (iii) the date on which
such Security has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement; or (iv) the
date on which such Security is actually sold pursuant to Rule 144 under the
Securities Act; provided that a Security will
not cease to be an Entitled Security for purposes of the Exchange Offer by
virtue of this clause (iv).
“Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended from time to
time.
“Exchange Dates” shall
have the meaning set forth in Section 2(a)(ii) hereof.
“Exchange Offer” shall
mean the exchange offer by the Company and the Guarantors of Exchange Securities
for Entitled Securities pursuant to Section 2(a) hereof.
“Exchange Offer
Registration” shall mean a registration under the Securities Act effected
pursuant to Section 2(a) hereof.
“Exchange Offer Registration
Statement” shall mean an exchange offer registration statement on Form
S-4 (or, if applicable, on another appropriate form) and all amendments and
supplements to such registration statement, in each case including the
Prospectus contained therein or deemed a part thereof, all exhibits thereto and
any document incorporated by reference therein.
“Exchange Securities”
shall mean senior notes issued by the Company and guaranteed by the Guarantors
under the Indenture containing terms identical to the Securities (except that
the Exchange Securities will not be subject to restrictions on transfer or to
any increase in annual interest rate for failure to comply with this Agreement)
and to be offered to Holders of Securities in exchange for Securities pursuant
to the Exchange Offer.
“FINRA” shall mean the
Financial Industry Regulatory Authority.
“Free Writing
Prospectus” shall mean a free writing prospectus, as defined in Rule 405
under the Securities Act.
“Guarantors” shall
have the meaning set forth in the preamble and shall also include any
Guarantor’s successors and any Additional Guarantors.
“Holder” shall mean
each Initial Purchaser, for so long as it owns any Entitled Securities, and each
of the Initial Purchasers’ successors, assigns and direct and indirect
transferees who becomes an owner of Entitled Securities under the Indenture;
provided that for purposes of Sections 4 and 5 of this Agreement, the term
“Holders” shall include Participating Broker-Dealers.
“Indemnified Person”
shall have the meaning set forth in Section 5(c) hereof.
“Indemnifying Person”
shall have the meaning set forth in Section 5(c) hereof.
“Indenture” shall mean
the indenture relating to the Securities, dated as of December 23, 2009, among
the Company, the Guarantors, U.S. Bank National Association, as trustee, and
Wilmington Trust FSB, as collateral trustee, and as the same may be amended from
time to time in accordance with the terms thereof.
“Initial Purchasers”
shall have the meaning set forth in the preamble.
“Inspector” shall have
the meaning set forth in Section 3(a)(xiii) hereof.
“Issuer Free Writing
Prospectus” shall mean an issuer free writing prospectus, as defined in
Rule 433 under the Securities Act.
“Participating
Broker-Dealers” shall have the meaning set forth in Section 4(a)
hereof.
“Permitted Free Writing
Prospectus” shall have the meaning set forth in Section 6(k)
hereof.
“Person” shall mean an
individual, partnership, limited liability company, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
“Prospectus” shall
mean the prospectus included in, or, pursuant to the rules and regulations of
the Securities Act, deemed a part of, a Registration Statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented by
any prospectus supplement, including a prospectus supplement with respect to the
terms of the offering of any portion of the Entitled Securities covered by a
Shelf Registration Statement, and by all other amendments and supplements to
such prospectus, and in each case including any document incorporated by
reference therein.
“Purchase Agreement”
shall have the meaning set forth in the preamble.
“Registration
Expenses” shall mean any and all expenses incident to performance of or
compliance by the Company and the Guarantors with this Agreement, including
without limitation: (i) all SEC, stock exchange or FINRA registration and
filing fees, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws (including reasonable fees and
disbursements of counsel for any Underwriters or Holders in connection with blue
sky qualification of any Exchange Securities or Entitled Securities),
(iii) all expenses of any Persons in preparing or assisting in preparing,
word processing, printing and distributing any Registration Statement, any
Prospectus and any amendments or supplements thereto, (iv) all rating
agency fees, (v) all fees and disbursements relating to the qualification
of the Indenture under applicable securities laws, (vi) the reasonable fees
and disbursements of the Trustee and its counsel, (vii) the reasonable fees
and disbursements of counsel for the Company and the Guarantors and, in the case
of a Shelf Registration Statement, the reasonable fees and disbursements of one
counsel for the Holders (which counsel shall initially be counsel for the
Initial Purchasers, subject to replacement upon action by a majority of Holders)
and (viii) the fees and disbursements of the independent public accountants
of the Company and the Guarantors, including the expenses of any special audits
or “comfort” letters required by or incident to the performance of and
compliance with this Agreement, but excluding fees and expenses of counsel to
the Underwriters (other than fees and expenses set forth in clause
(ii) above) or the Holders and underwriting discounts and commissions,
brokerage commissions and transfer taxes, if any, relating to the sale or
disposition of Entitled Securities by a Holder.
“Registration
Statement” shall mean any registration statement of the Company and the
Guarantors that covers any of the Exchange Securities or Entitled 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 or deemed a part thereof, all
exhibits thereto and any document incorporated by reference
therein.
“SEC” shall mean the
United States Securities and Exchange Commission.
“Securities” shall
have the meaning set forth in the preamble.
“Securities Act” shall
mean the Securities Act of 1933, as amended from time to time.
“Shelf Effectiveness
Period” shall have the meaning set forth in Section 2(b)
hereof.
“Shelf Registration”
shall mean a registration effected pursuant to Section 2(b)
hereof.
“Shelf Registration
Statement” shall mean a “shelf” registration statement of the Company and
the Guarantors filed under the Securities Act providing for the registration on
a continuous or delayed basis of the Entitled Securities pursuant to Rule 415
under the Securities 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 or deemed a part thereof, all exhibits thereto and any document
incorporated by reference therein.
“Shelf Request” shall
have the meaning set forth in Section 2(b) hereof.
“Subsidiary
Guarantees” shall mean the guarantees of the Securities and Exchange
Securities by the Guarantors under the Indenture.
“Staff” shall mean the
staff of the SEC.
“Target Registration
Date” shall have the meaning set forth in Section 2(d)
hereof.
“Trust Indenture Act”
shall mean the Trust Indenture Act of 1939, as amended from time to
time.
“Trustee” shall mean
the trustee with respect to the Securities under the Indenture.
“Underwriter” shall
have the meaning set forth in Section 3(e) hereof.
“Underwritten
Offering” shall mean an offering in which Entitled Securities are sold to
an Underwriter for reoffering to the public.
2. Registration
Under the Securities Act. (a) To the extent not prohibited by any
applicable law or applicable interpretations of the Staff, the Company and the
Guarantors shall (i) cause to be filed an Exchange Offer Registration
Statement with the SEC covering an offer to the Holders to exchange all the
Entitled Securities for Exchange Securities on or prior to 180 days following
the date hereof, (ii) use all commercially reasonable efforts to have the
Exchange Offer Registration Statement declared effective by the SEC on or prior
to 270 days following the date hereof, (iii) commence the Exchange Offer
promptly after the Exchange Offer Registration Statement is declared effective
by the SEC and (iv) use all commercially reasonable efforts to issue on or prior
to 30 Business Days, or longer, if required by applicable securities laws, after
the date on which the Exchange Offer Registration Statement was declared
effective by the SEC, Exchange Securities in exchange for all Entitled
Securities tendered prior thereto in the Exchange Offer.
The
Company and the Guarantors shall commence the Exchange Offer by mailing the
related Prospectus, appropriate letters of transmittal and other accompanying
documents to each Holder stating, in addition to such other disclosures as are
required by applicable law, substantially the following:
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(i)
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that
the Exchange Offer is being made pursuant to this Agreement and that all
Entitled Securities validly tendered and not properly withdrawn will be
accepted for exchange;
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(ii)
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the
dates of acceptance for exchange (which shall be a period of at least 20
Business Days from the date such notice is mailed) (the “Exchange
Dates”);
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(iii)
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that
any Registrable Security not tendered will remain outstanding and continue
to accrue interest but will not retain any rights under this Agreement,
except as otherwise specified
herein;
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(iv)
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that
any Holder electing to have a Registrable Security exchanged pursuant to
the Exchange Offer will be required to (A) surrender such Registrable
Security, together with the appropriate letters of transmittal, to the
institution and at the address (located in the United States of America)
and in the manner specified in the notice, or (B) effect such
exchange otherwise in compliance with the applicable procedures of the
depositary for such
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Registrable
Security, in each case prior to the close of business on the last Exchange
Date; and
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(v)
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that
any Holder will be entitled to withdraw its election, not later than the
close of business on the last Exchange Date, by (A) sending to the
institution and at the address (located in the United States of America)
specified in the notice, a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of
Entitled Securities delivered for exchange and a statement that such
Holder is withdrawing its election to have such Securities exchanged or
(B) effecting such withdrawal in compliance with the applicable
procedures of the depositary for the Entitled
Securities.
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As a
condition to participating in the Exchange Offer, a Holder will be required to
represent to the Company and the Guarantors that (i) any Exchange
Securities to be received by it will be acquired in the ordinary course of its
business, (ii) at the time of the commencement of the Exchange Offer it has
no arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange
Securities in violation of the provisions of the Securities Act, (iii) it
is not an “affiliate” (within the meaning of Rule 405 under the Securities Act)
of the Company or any Guarantor and (iv) if such Holder is a broker-dealer
that it will receive Exchange Securities for its own account in exchange for
Entitled Securities that were acquired as a result of market-making or other
trading activities, and that such Holder will deliver a Prospectus (or, to the
extent permitted by law, make available a Prospectus to purchasers) in
connection with any resale of such Exchange Securities.
As soon
as practicable after the last Exchange Date, the Company and the Guarantors
shall:
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(i)
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accept
for exchange Entitled Securities or portions thereof validly tendered and
not properly withdrawn pursuant to the Exchange Offer;
and
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(ii)
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deliver,
or cause to be delivered, to the Trustee for cancellation all Entitled
Securities or portions thereof so accepted for exchange by the Company and
issue, and cause the Trustee to promptly authenticate and deliver to each
Holder, Exchange Securities equal in principal amount to the principal
amount of the Entitled Securities tendered by such
Holder.
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The
Company and the Guarantors shall use reasonable best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other applicable laws
and regulations in connection with the Exchange Offer. The Exchange Offer shall
not be subject to any conditions, other than that the Exchange Offer does not
violate any applicable law or applicable interpretations of the
Staff.
(b) In
the event that (i) the Company and the Guarantors determine they are not
required to file the Exchange Offer Registration Statement, (ii) the
Company and the Guarantors determine that the Exchange Offer Registration
provided for in Section 2(a) above is not permitted or may not be completed
as soon as practicable after the last Exchange Date because it would violate any
applicable law or applicable interpretations of the Staff, or (iii) upon
receipt of a written request (a “Shelf Request”) prior
to the 20th Business Day following consummation of the Exchange Offer from any
Holder of Entitled Securities that states that (A) such Holder is prohibited by
law or SEC policy from participating in the Exchange Offer; (B) such Holder may
not resell the Exchange Securities acquired by it in the Exchange Offer to the
public without delivering a prospectus and the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales; or (C) such Holder is a broker-dealer and owns Securities acquired
directly from the Company or an affiliate of the Company, then the Company and
the Guarantors shall use commercially reasonable efforts to file, on or prior to
30 days following such determination date or Shelf Request, as the case may be,
a Shelf Registration Statement
providing
for the sale of all the Entitled Securities by the Holders thereof and to cause
such Shelf Registration Statement to be declared effective by the SEC on or
prior to 90 days following the date of such determination date or Shelf Request,
as the case may be.
In the
event that the Company and the Guarantors are requested to file a Shelf
Registration Statement pursuant to clause (iii) of the preceding sentence,
the Company and the Guarantors shall use reasonable best efforts to file and
have become effective both an Exchange Offer Registration Statement pursuant to
Section 2(a) with respect to all Entitled Securities and a Shelf
Registration Statement (which may be a combined Registration Statement with the
Exchange Offer Registration Statement) with respect to offers and sales of
Entitled Securities held by the Initial Purchasers after completion of the
Exchange Offer.
The
Company and the Guarantors agree to use reasonable best efforts to keep the
Shelf Registration Statement continuously effective until there are no longer
any Entitled Securities outstanding (the “Shelf Effectiveness
Period”). The Company and the Guarantors further agree to supplement or
amend the Shelf Registration Statement and the related Prospectus if required by
the rules, regulations or instructions applicable to the registration form used
by the Company for such Shelf Registration Statement or by the Securities Act or
by any other rules and regulations thereunder or if reasonably requested by a
Holder of Entitled Securities with respect to information relating to such
Holder, and to use reasonable best efforts to cause any such amendment to become
effective, if required, and such Shelf Registration Statement and Prospectus to
become usable as soon as thereafter practicable. The Company and the Guarantors
agree to furnish to the Holders of Entitled Securities copies of any such
supplement or amendment promptly after its being used or filed with the
SEC.
(c) The
Company and the Guarantors shall pay all Registration Expenses in connection
with any registration pursuant to Section 2(a) or Section 2(b) hereof.
Each Holder shall pay all underwriting discounts and commissions, brokerage
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder’s Entitled Securities pursuant to the Shelf Registration
Statement.
(d) An
Exchange Offer Registration Statement pursuant to Section 2(a) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC. A Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC or is automatically effective upon filing with the SEC as
provided by Rule 462 under the Securities Act.
In the
event that (i) the Exchange Offer Registration Statement or Shelf Registration
Statement, if required hereby, is not filed on or before the dates specified in
Section 2(a) and Section 2(b), respectively, (ii) either the Exchange Offer
Registration Statement or the Shelf Registration Statement, if required hereby,
is not declared effective by the SEC on or prior to the dates
specified in Section 2(a) and Section 2(b), respectfully (each, a “Target Registration
Date”), (iii) the Exchange Offer is not completed within 30 Business Days
of the applicable Target Registration Date, or (iv) if the Exchange Offer
Registration Statement or Shelf Registration Statement, if required hereby, is
declared effective and thereafter either ceases to be effective or the
Prospectus contained therein ceases to be usable, in each case whether or not
permitted by this Agreement, at any time prior to the completion of the Exchange
Offer or during the Shelf Effectiveness Period, as applicable (each such event
referred to in clauses (i) through (iv), a “Registration
Default”), then, in each case, the interest rate on the Entitled
Securities will be increased by (i) 0.25% per annum for the first
90-day period immediately following the Target Registration Date and
(ii) an additional 0.25% per annum with respect to each subsequent 90
day period thereafter, in each case until all Registration Defaults have been
cured, up to a maximum increase of 1.00% per annum.
(e)
Without limiting the remedies available to the Initial Purchasers and the
Holders, the Company and the Guarantors acknowledge that any failure by the
Company or the Guarantors to comply with their obligations under
Section 2(a) and Section 2(b) 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 will 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 Guarantors’ obligations under
Section 2(a) and Section 2(b) hereof.
(f) The
Company represents, warrants and covenants that it (including its agents and
representatives) will not prepare, make, use, authorize, approve or refer to any
Free Writing Prospectus in connection with the Shelf Registration
Statement.
3. Registration
Procedures.
(a) In
connection with their obligations pursuant to Section 2(a) and
Section 2(b) hereof, the Company and the Guarantors shall as expeditiously
as possible:
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(i)
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use
reasonable best efforts to prepare and file with the SEC a Registration
Statement on the appropriate form under the Securities Act, which form
(x) shall be selected by the Company and the Guarantors,
(y) shall, in the case of a Shelf Registration, be available for the
sale of the Entitled Securities by the Holders thereof and (z) shall
comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the SEC
to be filed therewith; and use reasonable best efforts to cause such
Registration Statement to become effective and remain effective for the
applicable period in accordance with Section 2
hereof;
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(ii)
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use
reasonable best efforts to prepare and file with the SEC such amendments
and post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the applicable
period in accordance with Section 2 hereof (subject to clause (d)
below) and cause each Prospectus to be supplemented by any required
prospectus supplement and, as so supplemented, to be filed pursuant to
Rule 424 under the Securities Act; and keep each Prospectus current during
the period described in Section 4(3) of and Rule 174 under the
Securities Act that is applicable to transactions by brokers or dealers
with respect to the Entitled Securities or Exchange
Securities;
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(iii)
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in
the case of a Shelf Registration, use reasonable best efforts to furnish
to each Holder of Entitled Securities, to counsel for the Initial
Purchasers, to counsel for such Holders and to each Underwriter of an
Underwritten Offering of Entitled Securities, if any, without charge, as
many copies of each Prospectus or preliminary prospectus, and any
amendment or supplement thereto, as such Holder, counsel or Underwriters
may reasonably request in order to facilitate the sale or other
disposition of the Entitled Securities thereunder; and the Company and the
Guarantors consent to the use of such Prospectus, preliminary prospectus
and any amendment or supplement thereto in accordance with applicable law
by each of the Holders of Entitled Securities and any such Underwriters in
connection with the offering and sale of the Entitled Securities covered
by and in the manner described in such Prospectus, preliminary prospectus
or any amendment or supplement thereto in accordance with applicable
law;
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(iv)
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use
reasonable best efforts to register or qualify the Entitled Securities
under all applicable state securities or “blue sky” laws of such
jurisdictions as any Holder of Entitled
Securities
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covered
by a Registration Statement shall reasonably request in writing by the
time the applicable Registration Statement becomes effective; cooperate
with such Holders in connection with any filings required to be made with
FINRA; and do any and all other acts and things that may be reasonably
necessary or advisable to enable each Holder to complete the disposition
in each such jurisdiction of the Entitled Securities owned by such Holder;
provided
that neither the Company nor any Guarantor shall be required to
(1) qualify as a foreign corporation or other entity or as a dealer
in securities in any such jurisdiction where it would not otherwise be
required to so qualify, (2) file any general consent to service of
process in any such jurisdiction or (3) subject itself to taxation in
any such jurisdiction if it is not so
subject;
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(v)
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in
the case of a Shelf Registration, notify counsel for the Initial
Purchasers and notify each Holder of Entitled Securities and counsel for
such Holders promptly and, if requested by any such Holder or counsel,
confirm such advice in writing (1) when a Registration Statement has
become effective, when any post-effective amendment thereto has been filed
and becomes effective and when any amendment or supplement to the
Prospectus has been filed, (2) of any request by the SEC or any state
securities authority for amendments and supplements to a Registration
Statement or Prospectus or for additional information after the
Registration Statement has become effective, (3) 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, including the receipt by the Company of any
notice of objection of the SEC to the use of a Shelf Registration
Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act, (4) of the happening of any event
during the period a Registration Statement is effective that makes any
statement made in such Registration Statement or the related Prospectus
untrue in any material respect or that requires the making of any changes
in such Registration Statement or Prospectus in order to make the
statements therein not misleading and (5) of any determination by the
Company or any Guarantor that a post-effective amendment to a Registration
Statement or any amendment or supplement to the Prospectus would be
appropriate;
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(vi)
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subject
to clause (d) below, use reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement or,
in the case of a Shelf Registration, the resolution of any objection of
the SEC pursuant to Rule 401(g)(2), including by filing an amendment to
such Shelf Registration Statement on the proper form, at the earliest
possible moment and provide immediate notice to each Holder of the
withdrawal of any such order or such
resolution;
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(vii)
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in
the case of a Shelf Registration, furnish to each Holder of Entitled
Securities upon request, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto
(without any documents incorporated therein by reference or exhibits
thereto, unless requested);
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(viii)
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in
the case of a Shelf Registration, cooperate with the Holders of Entitled
Securities to facilitate the timely preparation and delivery of
certificates representing Entitled Securities to be sold and not bearing
any restrictive legends and enable such Entitled Securities to be issued
in such denominations and registered in such names (consistent with the
provisions of the Indenture) as such Holders may reasonably request at
least one Business Day prior to the closing of any sale of Entitled
Securities;
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(ix)
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in
the case of a Shelf Registration, upon the occurrence of any event
contemplated by Section 3(a)(v)(5) hereof, use reasonable best
efforts to prepare and file with the SEC a supplement or post-effective
amendment to such Shelf Registration Statement or any related Prospectus
or Issuer Free Writing Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered (or, to the extent permitted by law, made available) to
purchasers of the Entitled Securities, such Prospectus or Issuer Free
Writing Prospectus will cease to have the identified deficiencies and will
not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and the
Company and the Guarantors shall notify the Holders of Entitled Securities
to suspend use of the Prospectus or Issuer Free Writing Prospectus as
promptly as practicable after the occurrence of such an event, and such
Holders hereby agree to suspend use of the Prospectus or Issuer Free
Writing Prospectus until the Company and the Guarantors have amended or
supplemented the Prospectus or Issuer Free Writing Prospectus to correct
such misstatement or omission;
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(x)
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in
the case of a Shelf Registration Statement, a reasonable time prior to the
filing of any Registration Statement, any Prospectus, any Issuer Free
Writing Prospectus, any amendment to a Registration Statement or amendment
or supplement to a Prospectus or Issuer Free Writing Prospectus or of any
document that 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 and
their counsel and to the Holders of Entitled Securities and their counsel
and make such of the representatives of the Company and the Guarantors as
shall be reasonably requested by the Initial Purchasers or their counsel
and the Holders of Entitled Securities or their counsel available for
discussion of such document; and the Company and the Guarantors shall not,
at any time after initial filing of a Registration Statement, use or file
any Prospectus, any Issuer Free Writing Prospectus, any amendment of or
supplement to a Registration Statement or a Prospectus, or any document
that is to be incorporated by reference into a Registration Statement or a
Prospectus, of which the Initial Purchasers and their counsel and the
Holders of Entitled Securities and their counsel shall not have previously
been advised and furnished a copy or to which the Initial Purchasers or
their counsel and the Holders of Entitled Securities or their counsel
shall reasonably object within five Business Days after the receipt
thereof;
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(xi)
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obtain
a CUSIP number for all Exchange Securities or Entitled Securities, as the
case may be, not later than the initial effective date of a Registration
Statement;
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(xii)
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cause
the Indenture to be qualified under the Trust Indenture Act in connection
with the registration of the Exchange Securities or Entitled Securities,
as the case may be; cooperate with the Trustee and the Holders 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 Trust Indenture Act; and
execute, and use 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;
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(xiii)
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in
the case of a Shelf Registration, make available for inspection by a
representative of the Holders of the Entitled Securities (an “Inspector”),
any Underwriter participating in any disposition pursuant to such Shelf
Registration Statement, any attorneys and accountants designated by a
majority of the Holders of Entitled Securities to be included in such
Shelf Registration and any attorneys and accountants designated by such
Underwriter, at reasonable times and in a reasonable manner, all pertinent
financial and other records,
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documents
and properties of the Company and its subsidiaries, and cause the
respective officers, directors and employees of the Company and the
Guarantors to supply all information reasonably requested by any such
Inspector, Underwriter, attorney or accountant in connection with a Shelf
Registration Statement; provided that
if any such information is identified by the Company or any Guarantor as
being confidential or proprietary, each Person receiving such information
shall take such actions as are reasonably necessary to protect the
confidentiality of such information to the extent such action is otherwise
not inconsistent with, an impairment of or in derogation of the rights and
interests of any Inspector, Holder or
Underwriter;
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(xiv)
|
in
the case of a Shelf Registration, use reasonable best efforts to cause all
Entitled Securities to be listed on any securities exchange or any
automated quotation system on which the Securities issued or guaranteed by
the Company or any Guarantor are then listed if requested by the majority
of Holders, to the extent such Entitled Securities satisfy applicable
listing requirements;
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(xv)
|
if
reasonably requested by any Holder of Entitled Securities covered by a
Shelf Registration Statement, promptly include in a Prospectus supplement
or post-effective amendment such information with respect to such Holder
as such Holder reasonably requests to be included therein and make all
required filings of such Prospectus supplement or such post-effective
amendment as soon as reasonably practicable after the Company has received
notification of the matters to be so included in such
filing;
|
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(xvi)
|
in
the case of a Shelf Registration, enter into such customary agreements and
take all such other actions in connection therewith (including those
requested by a majority of the Holders) in order to expedite or facilitate
the disposition of such Entitled Securities including, but not limited to,
an Underwritten Offering and in such connection, (1) to the extent
possible, make such representations and warranties to the Holders and any
Underwriters of such Entitled Securities with respect to the business of
the Company and its subsidiaries and the Registration Statement,
Prospectus and documents incorporated by reference or deemed incorporated
by reference, if any, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings and
confirm the same if and when requested, (2) obtain opinions of
counsel to the Company and the Guarantors (which counsel and opinions, in
form, scope and substance, shall be reasonably satisfactory to the Holders
and such Underwriters and their respective counsel) addressed to each
selling Holder and Underwriter of Entitled Securities, covering the
matters customarily covered in opinions requested in underwritten
offerings, (3) obtain “comfort” letters from the independent
certified public accountants of the Company and the Guarantors (and, if
necessary, any other certified public accountant of any subsidiary of the
Company or any Guarantor, or of any business acquired by the Company or
any Guarantor for which financial statements and financial data are or are
required to be included in the Registration Statement) addressed to each
selling Holder (to the extent permitted by applicable professional
standards) and Underwriter of Entitled Securities, such letters to be in
customary form and covering matters of the type customarily covered in
“comfort” letters in connection with underwritten offerings, including but
not limited to financial information contained in any preliminary
prospectus or Prospectus and (4) deliver such documents and
certificates as may be reasonably requested by the Holders of a majority
in principal amount of the Entitled Securities being sold or the
Underwriters, and which are customarily delivered in underwritten
offerings, to evidence the continued validity of the representations and
warranties of the Company and the Guarantors made pursuant to clause
(1) above and
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|
|
to
evidence compliance with any customary conditions contained in an
underwriting agreement; and
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(xvii)
|
prior
to the completion of the Exchange Offer, or, in the case of a Shelf
Registration Statement, prior to the date on which such Shelf Registration
Statement is declared effective, and so long as any Entitled Securities
remain outstanding, cause each Additional Guarantor upon the creation or
acquisition by the Company of such Additional Guarantor, to execute a
counterpart to this Agreement in the form attached hereto as Annex A and
to deliver such counterpart to the Initial Purchasers no later than five
Business Days following the execution
thereof.
|
(b) In
the case of a Shelf Registration Statement, the Company may require each Holder
of Entitled Securities to furnish to the Company such information regarding such
Holder and the proposed disposition by such Holder of such Entitled Securities
as the Company and the Guarantors may from time to time reasonably request in
writing.
(c) In
the case of a Shelf Registration Statement, each Holder of Entitled Securities
covered in such Shelf Registration Statement agrees that, upon receipt of any
notice from the Company and the Guarantors of the happening of any event of the
kind described in Section 3(a)(v)(3) or 3(a)(v)(5) hereof, such Holder will
forthwith discontinue disposition of Entitled Securities pursuant to the Shelf
Registration Statement until such Holder’s receipt of the copies of the
supplemented or amended Prospectus or Issuer Free Writing Prospectus
contemplated by Section 3(a)(ix) hereof and, if so directed by the Company
and the Guarantors, such Holder will deliver to the Company and the Guarantors
all copies in its possession, other than permanent file copies then in such
Holder’s possession, of the Prospectus and any Issuer Free Writing Prospectuses
covering such Entitled Securities that are current at the time of receipt of
such notice.
(d) If
the Company and the Guarantors shall give any notice to suspend the disposition
of Entitled Securities pursuant to a Registration Statement, the Company and the
Guarantors shall extend the period during which such Registration Statement
shall be maintained effective pursuant to this Agreement by the number of days
during the period from and including the date of the giving of such notice to
and including the date when the Holders of such Entitled Securities shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions. The Company and the Guarantors may give any such notice only
twice during any 365-day period and any such suspensions shall not exceed 45
days for each suspension and there shall not be more than two suspensions in
effect during any 365-day period.
(e) The
Holders of Entitled Securities covered by a Shelf Registration Statement who
desire to do so may sell such Entitled Securities in an Underwritten Offering.
In any such Underwritten Offering, the investment bank or investment banks and
manager or managers (each, an “Underwriter”) that will administer the offering
will be selected by the Holders of a majority in principal amount of the
Entitled Securities included in such offering and shall be reasonably acceptable
to the Company.
4. Participation
of Broker-Dealers in Exchange Offer.
(a) The
Staff has taken the position that any broker-dealer that receives Exchange
Securities for its own account in the Exchange Offer in exchange for Securities
that were acquired by such broker-dealer as a result of market-making or other
trading activities (a “Participating
Broker-Dealer”) may be deemed to be an “underwriter” within the meaning
of the Securities Act and must deliver a prospectus meeting the requirements of
the Securities Act in connection with any resale of such Exchange
Securities.
The
Company and the Guarantors understand that it is the Staff’s position that if
the Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Exchange Securities, without
naming the Participating Broker-Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers (or, to the extent permitted by law, made available to
purchasers) to satisfy their prospectus delivery obligation under the Securities
Act in connection with resales of Exchange Securities for their own accounts, so
long as the Prospectus otherwise meets the requirements of the Securities
Act.
(b) In
light of the above, and notwithstanding the other provisions of this Agreement,
the Company and the Guarantors agree, upon request of any Broker-Dealer, to
amend or supplement the Prospectus contained in the Exchange Offer Registration
Statement for a period of up to 90 days after the last Exchange Date (as such
period may be extended pursuant to Section 3(d) of this Agreement), in
order to expedite or facilitate the disposition of any Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff recited
in Section 4(a) above. The Company and the Guarantors further agree that
Participating Broker-Dealers shall be authorized to deliver such Prospectus (or,
to the extent permitted by law, make available) during such period in connection
with the resales contemplated by this Section 4.
5. Indemnification
and Contribution.
(a) The
Company and each Guarantor, jointly and severally, agree to indemnify and hold
harmless each Initial Purchaser and each Holder, their respective affiliates,
directors and officers and each Person, if any, who controls any Initial
Purchaser or any Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation, legal fees and
other expenses incurred in connection with any suit, action or proceeding or any
claim asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, (1) any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, or (2) any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus or any Issuer Free Writing Prospectus,
or any omission or alleged omission to state therein a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, in each case except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information provided by any Initial
Purchaser or Holder expressly for use therein. In connection with any
Underwritten Offering permitted by Section 3, the Company and the
Guarantors, jointly and severally, will also indemnify the Underwriters, if any,
selling brokers, dealers and similar securities industry professionals
participating in the distribution, their respective affiliates and each Person
who controls such Persons (within the meaning of the Securities Act and the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any Registration
Statement, any Prospectus or any Issuer Free Writing Prospectus.
(b) Each
Holder agrees, severally and not jointly, to indemnify and hold harmless the
Company, the Guarantors, the Initial Purchasers and the other selling Holders,
the directors of the Company and the Guarantors, each officer of the Company and
the Guarantors who signed the Registration Statement and each Person, if any,
who controls the Company, the Guarantors, any Initial Purchaser and any other
selling Holder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act
to the
same extent as the indemnity set forth in paragraph (a) above, but only
with respect to any losses, claims, damages or liabilities that arise out of, or
are based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating
to such Holder furnished to the Company in writing by such Holder expressly for
use in any Registration Statement, any Prospectus or any Issuer Free Writing
Prospectus.
(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 indemnification may be sought pursuant to either paragraph
(a) or (b) above, such Person (the “Indemnified Person”)
shall promptly notify the Person against whom such indemnification may be sought
(the “Indemnifying
Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under paragraph (a) or (b) above except to
the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided, further, that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under
paragraph (a) or (b) above. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this
Section 5 that the Indemnifying Person may designate in such proceeding and
shall pay the fees and expenses of such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding, as incurred. 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; (iii) the Indemnified
Person shall have reasonably concluded that there may be legal defenses
available to it that are different from or in addition to those available to the
Indemnifying Person; or (iv) 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 and agreed 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, and that all such fees and expenses
shall be reimbursed as they are incurred. Any such separate firm (x) if
designated for one or more Initial Purchasers or affiliates, directors, officers
or control Persons of one or more Initial Purchasers shall be designated in
writing by Barclays Capital Inc. unless such representation is to include
Holders that are not Initial Purchasers, (y) if designated for one or more
Holders or directors, officers or control Persons of any Holder, in each case
including one or more Holders other than Initial Purchasers, shall be designated
in writing by a majority of the Holders to be represented and (z) in all
other cases shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its prior written consent, but if settled with such consent or if there is a
final non-appealable judgment for the plaintiff, the Indemnifying Person agrees
to indemnify each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. 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 indemnification could have been sought hereunder
by such Indemnified Person, unless such settlement (A) includes an
unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (B) does not include any
statement as to or any admission of fault, culpability or a failure to act by or
on behalf of any Indemnified Person.
(d) If
the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and the Guarantors from the offering of the Securities and the
Exchange Securities, on the one hand, and by the Holders from receiving
Securities or Exchange Securities registered under the Securities Act, on the
other hand, or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) but also the relative
fault of the Company and the Guarantors on the one hand and the Holders on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Guarantors on the one
hand and the Holders on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Guarantors or by the applicable
Holders, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The
Company, the Guarantors and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 5 were determined by
pro rata allocation (even
if the Holders were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an
Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or claim. Notwithstanding
the provisions of this Section 5, in no event shall a Holder be required to
contribute any amount in excess of the amount by which the total price at which
the Securities or Exchange Securities sold by such Holder exceeds the amount of
any damages that such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. The Holders’
obligations to contribute pursuant to this Section 5 are several and not
joint.
(f) The
remedies provided for in this Section 5 are not exclusive and shall not
limit any rights or remedies that may otherwise be available to any Indemnified
Person at law or in equity.
(g) The
indemnity and contribution provisions contained in this Section 5 shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf
of the Initial Purchasers or any Holder or any Person controlling any Initial
Purchaser or any Holder, or by or on behalf of the Company or the Guarantors or
the officers or directors of or any Person controlling the Company or the
Guarantors, (iii) acceptance of any of the Exchange Securities and
(iv) any sale of Entitled Securities pursuant to a Shelf Registration
Statement.
6. General.
(a) No Inconsistent
Agreements. The Company and the Guarantors represent, warrant and agree
that (i) the rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
any other outstanding securities issued or guaranteed by the Company or any
Guarantor under any other agreement and (ii) neither the Company nor any
Guarantor has entered into, or on or after the date of this Agreement will enter
into, any agreement that is
inconsistent
with the rights granted to the Holders of Entitled Securities in this Agreement
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, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given unless the
Company and the Guarantors have obtained the written consent of a majority of
the Holders affected by such amendment, modification, supplement, waiver or
consent; provided that no
amendment, modification, supplement, waiver or consent to any departure from the
provisions of Section 5 hereof shall be effective as against any Holder of
Entitled Securities unless consented to in writing by such Holder. Any
amendments, modifications, supplements, waivers or consents pursuant to this
Section 6(b) shall be by a writing executed by each of the parties
hereto.
(c) Notices. All notices
and other communications provided for or permitted hereunder shall be made in
writing by hand-delivery, registered first-class mail, telex, or any courier
guaranteeing overnight delivery (i) if to a Holder, at the most current
address given by such Holder to the Company by means of a notice given in
accordance with the provisions of this Section 6(c), which address
initially is, with respect to the Initial Purchasers, the addresses set forth in
the Purchase Agreement; (ii) if to the Company and the Guarantors,
initially at the Company’s address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 6(c); and (iii) to such other persons
at their respective addresses as provided in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 6(c). All such notices and communications
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt is acknowledged, if transmitted by
facsimile; 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, at the address specified in the Indenture
(d) Successors and
Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors, assigns and transferees of each of the parties, 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 Entitled Securities in violation of the terms of the Purchase Agreement or
the Indenture. If any transferee of any Holder shall acquire Entitled Securities
in any manner, whether by operation of law or otherwise, such Entitled
Securities shall be held subject to all the terms of this Agreement, and by
taking and holding such Entitled 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 and such Person shall be entitled to receive the
benefits hereof. The Initial Purchasers (in their capacity as Initial
Purchasers) shall have no liability or obligation to the Company or the
Guarantors with respect to any failure by a Holder to comply with, or any breach
by any Holder of, any of the obligations of such Holder under this
Agreement.
(e) Third Party
Beneficiaries. Each Holder shall be a third party beneficiary to the
agreements made hereunder between the Company and the Guarantors, 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 or the rights of other Holders
hereunder.
(f) Counterparts. This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement.
(g) Headings. The
headings in this Agreement are for convenience of reference only, are not a part
of this Agreement and shall not limit or otherwise affect the meaning
hereof.
(h) Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York. Each party hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of the
federal and state courts located in New York County, New York, including the
United States District Court for the Southern District of New York, in
connection with any claim brought with respect to this Agreement or related
matter and waives any right to claim such forum would be inappropriate,
including concepts of forum
non conveniens.
(i) Waiver of Jury
Trial. The Company, the Guarantors and each of the Initial
Purchasers hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
(j) Entire Agreement;
Severability. This Agreement contains the entire agreement between the
parties relating to the subject matter hereof and supersedes all oral statements
and prior writings with respect thereto. If any term, provision, covenant or
restriction contained in this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable or against public policy, the
remainder of the terms, provisions, covenants and restrictions contained herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated. The Company, the Guarantors and the Initial Purchasers shall
endeavor in good faith negotiations to replace the invalid, void or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, void or unenforceable
provisions.
(k) Free Writing
Prospectuses. Each Holder represents that it has not prepared
or had prepared on its behalf or used or referred to, and agrees that it will
not prepare or have prepared on its behalf or use or refer to, any Free Writing
Prospectus, and has not distributed and will not distribute any written
materials in connection with the offer or sale of the Entitled Securities
without the prior express written consent of the Company. Any such
Free Writing Prospectus consented to by the Company is hereinafter referred to
as a “Permitted Free
Writing Prospectus.” The Company represents and agrees that it
has treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, including in respect of timely
filing with the SEC, legends and record-keeping.
(l) Majorities. Any
reference herein to a majority of Holders or Electing Holders shall be deemed to
refer to a majority of the relevant aggregate principal amount of the
outstanding Entitled Securities and any reference herein to a majority of
Electing Holders shall be deemed to refer to a majority of the relevant
aggregate principal amount of the outstanding Entitled Securities the Holder of
which is an Electing Holder with respect to such Entitled Securities; provided that
whenever the consent or approval of Holders or Electing Holders is required
hereunder, any Entitled Securities owned directly or indirectly by the Company
or any of its affiliates shall not be counted in determining whether such
consent or approval was given by the required majority.
[Signature Page
Follows]
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
| GXS Worldwide, Inc. | ||
| /s/ Xxxx Xxxxxx | ||
| Name: Xxxx Xxxxxx | ||
| Title: Senior Vice President |
Confirmed
and accepted as of the date first above written:
BARCLAYS
CAPITAL INC.
|
/s/ Xxxx
Xxxx
|
|
|
Name:
Xxxx Xxxx
Title:
Director
|
X.X.
XXXXXX SECURITIES INC.
| /s/ Xxxx Xxxx | |
|
Name:
Xxxx Xxxx
Title:
Vice President
|
CITIGROUP
GLOBAL MARKETS INC
| /s/ Xxxxxxx Xxxxxxxx | |
|
Name:
Xxxxxxx Xxxxxxxx
Title:
Director
|
XXXXX
FARGO SECURITIES, LLC
| /s/ Xxxxxxx X. Xxxxxxx, III | |
|
Name:
Xxxxxxx X. Xxxxxxx, III
Title:
Director
|
Schedule
1
Guarantors
GXS,
Inc.
GXS
International, Inc.
HAHT
Commerce, Inc.
Schedule
2
Initial
Purchasers
Barclays
Capital Inc.
X.X
Xxxxxx Securities Inc.
Citibank
Global Markets Inc.
Xxxxx
Fargo Securities, LLC
FBR
Capital Markets & Co.
SG
Americas Securities LLC
Annex A
Counterpart to Registration
Rights Agreement
The
undersigned hereby absolutely, unconditionally and irrevocably agrees as a
Guarantor (as defined in the Registration Rights Agreement, dated as of December
23, 2009 by and among the Company, the guarantors party thereto and Barclays
Capital Inc., X.X. Xxxxxx Securities Inc., Citigroup Global Markets Inc. and
Xxxxx Fargo Securities, LLC, each on behalf of itself and the other Initial
Purchasers) to be bound by the terms and provisions of such Registration Rights
Agreement.
IN
WITNESS WHEREOF, the undersigned has executed this counterpart as of December
23, 2009.
| GXS, Inc. | |||
| By | |||
| Name: | |||
| Title: | |||
| GXS Investments, Inc. | |||
| By | |||
| Name: | |||
| Title: | |||
|
GXS
International, Inc.
|
|||
| By | |||
| Name: | |||
| Title: | |||
|
HAHT
Commerce, Inc.
|
|||
| By | |||
| Name: | |||
| Title: | |||
