Exhibit 4.2
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REGISTRATION RIGHTS AGREEMENT
Dated as of August 7, 2002
between
NORTH FORK BANCORPORATION, INC.
and
XXXXXXX XXXXX XXXXXX INC.
AND
THE OTHER INITIAL PURCHASERS
REFERRED TO HEREIN
as the Initial Purchasers
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of August 7, 2002
among North Fork Bancorporation, Inc., a Delaware corporation (the "Company"),
and Xxxxxxx Xxxxx Barney and the other parties referred to in Annex A hereto
(each, an "Initial Purchaser" and collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated July 31,
2002, by and among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of $350,000,000 aggregate principal amount of the Company's 5.875%
Subordinated Notes due 2012 (the "5.875% Notes") and $150,000,000 aggregate
principal amount of the Company's 5% Fixed Rate/Floating Rate Subordinated Notes
due 2012 (the "Fixed/Floating Rate Notes" and, together with the 5.875% Notes,
the "Securities"). In order to induce the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the Initial Purchasers'
obligations thereunder, the Company has agreed to provide to the Initial
Purchasers and their respective direct and indirect transferees and assigns 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 capitalized
defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from
time to time, and the rules and regulations of the SEC promulgated
thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations of the SEC
promulgated thereunder.
"Additional Interest" shall have the meaning set forth in Section
2(e) hereof.
"Closing Time" shall mean August 7, 2002.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company, including any agent thereof;
provided, however, that any such depositary must at all times have an
address in the Borough of Manhattan, The City of New York.
"Event Date" shall have the meaning set forth in Section 2(e).
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the
1933 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) covering the Registrable Securities, and all amendments
and supplements to such registration statement, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated or deemed to be incorporated by reference therein.
"Exchange Securities" shall mean the 5.875% Notes and the
Fixed/Floating Rate Notes, issued by the Company under the Indenture
containing terms identical to the 5.875% Notes and the Fixed/Floating Rate
Notes (except that (i) interest thereon shall accrue from the last date to
which interest has been paid or duly provided for on the Securities or, if
no such interest has been paid or duly provided for, from the Interest
Accrual Date, (ii) provisions relating to an increase in the stated rate
of interest thereon upon the occurrence of a Registration Default shall be
eliminated, (iii) the transfer restrictions, minimum purchase requirements
and legends relating to restrictions on ownership and transfer thereof as
a result of the issuance of the Securities without registration under the
1933 Act shall be eliminated and (iv) such securities will be issuable in
denominations of $1,000 and integral multiples of $1,000 in excess
thereof) to be offered to Holders of Registrable Securities in exchange
for Registrable Securities pursuant to the Exchange Offer.
"Holders" shall mean (i) the Initial Purchasers, for so long as they
own any Registrable Securities, and each of their respective successors,
assigns and direct and indirect transferees who become registered owners
of Registrable Securities under the Indenture and (ii) 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, dated as of August 7, 2002, by
and between the Company and U.S. Bank Trust National Association, as
trustee, as the same may be further amended or supplemented from time to
time in accordance with the terms thereof.
"Interest Accrual Date" means August 7, 2002.
"Initial Purchasers" shall have the meaning set forth in the
preamble of this Agreement.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Registrable Securities outstanding,
excluding Exchange Securities referred to in clause (ii) of the definition
of "Holders" above; provided that whenever the consent or approval of
Holders of a specified percentage of Registrable Securities or Exchange
Securities is required hereunder, Registrable Securities and Exchange
Securities held by the Company or any of its affiliates (as such term is
defined in Rule 405 under the 0000 Xxx) shall also be disregarded in
determining whether such consent or approval was given by the Holders of
such required percentage.
"NASD" shall mean the National Association of Securities Dealers,
Inc.
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"Notifying Broker-Dealer" shall have the meaning set forth in
Section 3(f).
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(f).
"Person" shall mean an individual, partnership, joint venture,
limited liability company, corporation, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
"Private Exchange Securities" shall have the meaning set forth in
Section 2(a) hereof.
"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 a
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 or deemed to be incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble to this Agreement.
"Registrable Securities" shall mean the Securities; provided,
however, that any Securities shall cease to be Registrable Securities when
(i) a Registration Statement with respect to such Securities shall have
been declared effective under the 1933 Act and such Securities shall have
been disposed of pursuant to such Registration Statement, (ii) such
Securities shall have been sold to the public pursuant to Rule 144 (or any
similar provision then in force, but not Rule 144A) under the 1933 Act,
(iii) such Securities shall have ceased to be outstanding, (iv) such
Securities have been exchanged for Exchange Securities which have been
registered pursuant to the Exchange Offer Registration Statement upon
consummation of the Exchange Offer unless, in the case of any Exchange
Securities referred to in this clause (iv), such Exchange Securities are
held by Participating Broker-Dealers or otherwise are not freely tradable
without any limitations or restrictions under the 1933 Act (in which case
such Exchange Securities will be deemed to be Registrable Securities until
the earlier of (A) 180 days after the completion of the Exchange Offer and
(B) such time as such Exchange Securities are sold to a purchaser in whose
hands such Exchange Securities are freely tradeable without any
limitations or restrictions under the 0000 Xxx) or (v) such Securities
have been exchanged for Private Exchange Securities under this Agreement
(in which case such Private Exchange Securities will be deemed to be
Registrable Securities until the earlier of (A) 180 days after the
completion of the Exchange Offer and (B) such time as such Private
Exchange Securities are sold to a purchaser in whose hands such Private
Exchange Securities are freely tradeable without any limitations or
restrictions under the 1933 Act).
"Registration Default" shall have the meaning set forth in Section
2(e).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i)
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all SEC, stock exchange or NASD registration and filing fees, (ii) all
fees and expenses incurred in connection with compliance with state or
other 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 qualification of any of the
Exchange Securities or Registrable Securities under state or other
securities or blue sky laws and any filing with and review by the NASD),
(iii) all expenses of any Persons in preparing, printing and distributing
any Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements,
certificates representing the Securities, Private Exchange Securities (if
any) or Exchange Securities and other documents relating to the
performance of and compliance with this Agreement, (iv) all rating agency
fees, (v) all fees and expenses incurred in connection with the listing,
if any, of any of the Securities or Exchange Securities on any securities
exchange or exchanges or on any quotation system, (vi) all fees and
disbursements relating to the qualification of the Indenture under
applicable securities laws, (vii) the fees and disbursements of counsel
for the Company and the fees and expenses of independent public
accountants for the Company or for any other Person, business or assets
whose financial statements are included in any Registration Statement or
Prospectus, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, (viii)
the fees and expenses of a "qualified independent underwriter" as defined
by Conduct Rule 2720 of the NASD (if required by the NASD rules) and the
fees and disbursements of its counsel, (ix) the fees and expenses of the
Trustee, any registrar, any depositary, any paying agent, any escrow agent
or any custodian, in each case including fees and disbursements of their
respective counsel, (x) the reasonable fees and expenses of the Initial
Purchasers in connection with the Exchange Offer, including the reasonable
fees and expenses of counsel to the Initial Purchasers in connection
therewith, (xi) the reasonable fees and disbursements, if any, of special
counsel representing the Holders of Registrable Securities and (xii) in
the case of an underwritten offering, any fees and disbursements of the
underwriters customarily paid by issuers or sellers of securities and the
fees and expenses of any special experts retained by the Company in
connection with any Registration Statement but excluding (except as
otherwise provided herein) fees of counsel to the underwriters or the
Holders and 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 relating to any offering of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement
(including, without limitation, any Exchange Offer Registration Statement
and any Shelf Registration Statement), 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 or deemed to be incorporated by
reference therein.
"Xxxxxxx Xxxxx Xxxxxx" shall mean Xxxxxxx Xxxxx Barney Inc. and its
successors.
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"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Securities" shall have the meaning set forth in the preamble to
this Agreement.
"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 pursuant to the provisions of Section 2(b) of
this Agreement which covers all of the Registrable Securities or Private
Exchange Securities (if any), as the case may be, on an appropriate form
under Rule 415 under the 1933 Act, or any similar rule that may be adopted
by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated or deemed to be incorporated by reference therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended from
time to time, and the rules and regulations of the SEC promulgated
thereunder.
"Trustee" shall mean the trustee with respect to the Securities, the
Private Exchange Securities (if any) and the Exchange Securities under the
Indenture.
For purposes of this Agreement, (i) all references in this Agreement to
any Registration Statement, preliminary prospectus or Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the SEC pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX"); (ii) all references in this Agreement to financial
statements and schedules and other information which is "contained", "included"
or "stated" in any Registration Statement, preliminary prospectus or Prospectus
(or other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated or deemed to be incorporated by reference in such Registration
Statement, preliminary prospectus or Prospectus, as the case may be; (iii) all
references in this Agreement to amendments or supplements to any Registration
Statement, preliminary prospectus or Prospectus shall be deemed to mean and
include the filing of any document under the 1934 Act which is incorporated or
deemed to be incorporated by reference in such Registration Statement,
preliminary prospectus or Prospectus, as the case may be; (iv) all references in
this Agreement to Rule 144, Rule 144A or Rule 405 under the 1933 Act, and all
references to any sections or subsections thereof or terms defined therein,
shall in each case include any successor provisions thereto; and (v) all
references in this Agreement to days (but not to business days) shall mean
calendar days.
2. Registration Under the 1933 Act.
(a) Exchange Offer Registration. The Company shall (A) file with the SEC
on or prior to the 90th day after the Closing Time an Exchange Offer
Registration Statement covering the offer by the Company to the Holders to
exchange all of the Registrable Securities for a like aggregate principal amount
of Exchange Securities, (B) use its reasonable best efforts to cause such
Exchange Offer Registration Statement to be declared effective by the SEC no
later than the
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180th day after the Closing Time, (C) use its reasonable best efforts to cause
such Registration Statement to remain effective until the closing of the
Exchange Offer and (D) use its reasonable best efforts to consummate the
Exchange Offer no later than 45 days after the effective date of the Exchange
Offer Registration Statement. Upon the effectiveness of the Exchange Offer
Registration Statement, the Company 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 (assuming
that such Holder is not an affiliate of the Company within the meaning of Rule
405 under the 1933 Act, acquires the Exchange Securities in the ordinary course
of such Holder's business and has no arrangements or understandings with any
Person to participate in the Exchange Offer for the purpose of distributing such
Exchange Securities) to trade such Exchange Securities from and after their
receipt without any limitations or restrictions under the 1933 Act or under the
securities or blue sky laws of the states of the United States.
In connection with the Exchange Offer, the Company shall:
(i) promptly mail 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;
(ii) keep the Exchange Offer open for not less than 20 business
days (or longer, if required by applicable law) after the date notice
thereof is mailed to the Holders and, during the Exchange Offer, offer to
all Holders who are legally eligible to participate in the Exchange Offer
the opportunity to exchange their Registrable Securities for Exchange
Securities;
(iii) use the services of a depositary with an address in the
Borough of Manhattan, The City of New York for the Exchange Offer;
(iv) permit Holders to withdraw tendered Registrable Securities at
any time prior to the close of business, New York City time, on the last
business day on which the Exchange Offer shall remain open, by sending to
the institution specified in the Prospectus or the related letter of
transmittal or related documents a 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 its election to have such Securities exchanged;
(v) 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
(vi) otherwise comply in all material respects with all applicable
laws relating to the Exchange Offer.
If, at or prior to the consummation of the Exchange Offer, any of the
Initial Purchasers holds any Securities acquired by it and having the status of
an unsold allotment in the initial distribution, the Company shall, upon the
request of any such Initial Purchaser, simultaneously
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with the delivery of the Exchange Securities in the Exchange Offer, issue and
deliver to such Initial Purchaser in exchange for such Securities a like
principal amount of debt securities of the Company that are identical (except
that such debt securities shall be subject to transfer restrictions and minimum
purchase requirements, and shall bear a legend relating to restrictions on
ownership and transfer, identical to those applicable to the Securities as a
result of the issuance thereof without registration under the 1933 Act and shall
provide for the payment of Additional Interest) to the Exchange Securities (the
"Private Exchange Securities"). The Company shall use its reasonable best
efforts to have the Private Exchange Securities bear the same CUSIP number as
the Exchange Securities and, if unable to do so, the Company will, at such time
as any Private Exchange Security can be sold publicly pursuant to Rule 144(k)
under the 1933 Act, permit any such Private Exchange Security to be exchanged
for a like principal amount of Exchange Securities. The Company shall not have
any liability under this Agreement solely as a result of any such Private
Exchange Securities not bearing the same CUSIP number as the Exchange
Securities.
The Exchange Securities and the Private Exchange Securities (if any) shall
be issued under the Indenture, which shall be qualified under the TIA. The
5.875% Notes shall provide that the Exchange Securities issued in respect
thereof, the Private Exchange Securities (if any) issued in respect thereof and
the 5.875% Notes shall vote and consent together on all matters as a single
class and shall constitute a single series of debt securities issued under the
Indenture. In addition, the Fixed/Floating Rate Notes shall provide that the
Exchange Securities issued in respect thereof, the Private Exchange Securities
(if any) issued in respect thereof and the Fixed/Floating Rate Notes shall vote
and consent together on all matters as a single class and shall constitute a
single series of debt securities issued under the Indenture.
As soon as practicable after the close of the Exchange Offer, the Company
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 is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange by the
Company; and
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Securities to each Holder of Registrable Securities so accepted
for exchange equal in principal amount to the principal amount of the
Registrable Securities of such Holder so accepted for exchange.
Interest on each Exchange Security and each Private Exchange Security (if
any) will accrue from the last date on which interest was paid or duly provided
for on the Securities surrendered in exchange therefor or, if no interest has
been paid or duly provided for on such Securities, from the Interest Accrual
Date. 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 any applicable law or any applicable interpretation of the staff of the
SEC, (ii) that no action or proceeding shall have been instituted or threatened
in any court or by or before
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any governmental agency with respect to the Exchange Offer which, in the
Company's judgment, would reasonably be expected to impair the ability of the
Company to proceed with the Exchange Offer, and (iii) that the Holders tender
the Registrable Securities to the Company in accordance with the Exchange Offer.
Each Holder of Registrable Securities (other than Participating Broker-Dealers)
who wishes to exchange such Registrable Securities for Exchange Securities in
the Exchange Offer will be required to represent that (i) it is not an affiliate
(as defined in Rule 405 under the 0000 Xxx) of the Company, (ii) any Exchange
Securities to be received by it will be acquired in the ordinary course of
business and (iii) it has no arrangement with any Person to participate in the
distribution (within the meaning of the 0000 Xxx) of the Exchange Securities,
and shall be required to make such other representations as may be reasonably
necessary under applicable SEC rules, regulations or interpretations to render
the use of Form S-4 or another appropriate form under the 1933 Act available. To
the extent permitted by law, the Company shall inform the Initial Purchasers of
the names and addresses of the Holders of Securities to whom the Exchange Offer
is made and, to the extent such information is available to the Company, the
names and addresses of the beneficial owners of such Securities, and the Initial
Purchasers shall have the right to contact such Holders and beneficial owners
and otherwise facilitate the tender of Registrable Securities in the Exchange
Offer.
(b) Shelf Registration. (i) If, because of any change in law or
applicable interpretations thereof by the staff of the SEC, the Company is not
permitted to effect the Exchange Offer as contemplated by Section 2(a) hereof,
or (ii) if for any other reason (A) the Exchange Offer Registration Statement is
not declared effective within 180 days following the Closing Time or (B) the
Exchange Offer is not consummated within 45 days after effectiveness of the
Exchange Offer Registration Statement (provided that if the Exchange Offer
Registration Statement shall be declared effective after such 180-day period or
if the Exchange Offer shall be consummated after such 45-day period, then the
Company's obligations under this clause (ii) arising from the failure of the
Exchange Offer Registration Statement to be declared effective within such
180-day period or the failure of the Exchange Offer to be consummated within
such 45-day period, respectively, shall terminate), or (iii) upon the request of
any Holder (other than an Initial Purchaser holding Securities acquired directly
from the Company) within 30 days following the consummation of the Exchange
Offer who is not eligible to participate in the Exchange Offer or who elects to
participate in the Exchange Offer but does not receive Exchange Securities which
are freely tradeable without any limitations or restrictions under the 1933 Act,
or (iv) upon the request of any of the Initial Purchasers within 90 days
following the consummation of the Exchange Offer (provided that, in the case of
this clause (iv), such Initial Purchaser shall hold Registrable Securities
(including, without limitation, Private Exchange Securities) from an initial
allotment that it acquired directly from the Company), the Company shall, at its
cost:
(A) as promptly as practicable, but no later than (a) the 180th
day after the Closing Time or (b) the 60th day after any such filing
obligation arises, whichever is later, file with the SEC 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 of such Registrable
Securities and set forth in such Shelf Registration Statement;
(B) use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the SEC as promptly as
practicable, but in no event later than the
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225th day after the Closing Time (or, in the case of a request by any of
the Initial Purchasers pursuant to clause (iv) above, within 90 days after
such request). In the event that the Company is required to file a Shelf
Registration Statement pursuant to clause (iii) or (iv) above, the Company
shall file and use its reasonable best efforts to have declared effective
by the SEC both an Exchange Offer Registration Statement pursuant to
Section 2(a) with respect to all Registrable 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 Registrable Securities held by such Holder or such Initial
Purchaser, as applicable;
(C) use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended as required, in
order to permit the Prospectus forming part thereof to be usable by
Holders for a period of two years after the latest date on which any
Securities are originally issued by the Company (subject to extension
pursuant to the last paragraph of Section 3) (or, solely in the case of
clause (iv) above of this Section 2(b), 180 days after completion of the
Exchange Offer) or, if earlier, when all of the Registrable Securities
covered by such Shelf Registration Statement (i) have been sold pursuant
to the Shelf Registration Statement in accordance with the intended method
of distribution thereunder, (ii) become eligible for resale pursuant to
Rule 144(k) under the 1933 Act or (iii) cease to be Registrable
Securities; and
(D) notwithstanding any other provisions hereof, use its
reasonable best efforts to ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming a part
thereof and any supplements thereto comply in all material respects with
the 1933 Act and the rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment or supplement 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
amendment or supplement to such Prospectus does not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
The Company shall not permit any securities other than Registrable
Securities to be included in the Shelf Registration Statement without the prior
written consent of Xxxxxxx Xxxxx Xxxxxx. The Company further agrees, if
necessary, to supplement or amend the Shelf Registration Statement if reasonably
requested by the Majority Holders with respect to information relating to the
Holders and otherwise as required by Section 3(b) below, to use its reasonable
best efforts to cause any such amendment to become effective and such Shelf
Registration Statement to become usable as soon as practicable thereafter 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.
(c) Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) and 2(b) and, in the
case of any Shelf Registration Statement, will reimburse the Holders or the
Initial Purchasers for the reasonable fees and disbursements of one counsel (in
addition to any local counsel) designated in writing by the
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Majority Holders (or, if a Shelf Registration Statement is filed solely pursuant
to clause (iv) of the first paragraph of Section 2(b), designated by the Initial
Purchasers) to act as counsel for the Holders of the Registrable Securities in
connection therewith. Each Holder shall pay all fees and disbursements of its
counsel other than as set forth in the preceding sentence or in the definition
of Registration Expenses and all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to a Shelf Registration Statement.
(d) Effective Registration Statement.
(i) The Company shall be deemed not to have used its reasonable
best efforts to cause the Exchange Offer Registration Statement or any
Shelf Registration Statement, as the case may be, to become, or to remain,
effective during the requisite periods set forth herein if the Company
voluntarily takes any action that could reasonably be expected to result
in any such Registration Statement not being declared effective or
remaining effective or in the Holders of Registrable Securities
(including, under the circumstances contemplated by Section 3(f) hereof,
Exchange Securities) covered thereby not being able to exchange or offer
and sell such Registrable Securities during that period unless (A) such
action is required by applicable law or (B) such action is taken by the
Company in good faith and for valid business reasons (but not including
avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets or a material corporate transaction
or event so long as the Company promptly complies with the notification
requirements of Section 3(k) hereof, if applicable. Nothing in this
paragraph shall prevent the accrual of Additional Interest on any
Registrable Securities.
(ii) An Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b)
hereof shall not be deemed to have become effective unless it has been
declared effective by the SEC; provided, however, that if, after such
Registration Statement has been declared effective, the offering of
Registrable Securities pursuant to a 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, such Registration Statement
shall be deemed not to have been effective during the period of such
interference until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume.
(iii) During any 365 day period, the Company may, by notice as
described in Section 3(e), suspend the availability of a Shelf
Registration Statement (and, if the Exchange Offer Registration Statement
is being used in connection with the resale of Exchange Securities by
Participating Broker Dealers as contemplated by Section 3(f), the Exchange
Offer Registration Statement) and the use of the related Prospectus for up
to 45 consecutive days each, but no more than an aggregate of 90 days
during any 365 day period, upon the happening of any event or the
discovery of any fact or the taking of any action referred to in Section
3(e)(vi), but subject to compliance by the Company with its obligations
under the last paragraph of Section 3.
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(e) Increase in Interest Rate. In the event that:
(i) the Exchange Offer Registration Statement is not filed with
the SEC on or prior to the 90th day following the Closing Time, or
(ii) the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the 180th day following the Closing
Time, or (iii) the Exchange Offer is not consummated on or prior to the
45th day following the effective date of the Exchange Offer Registration
Statement, or
(iv) if required, a Shelf Registration Statement is not filed with
the SEC on or prior to (A) the 180th day following the Closing Time or (B)
the 60th day after the filing obligation arises, whichever is later, or
(v) if required, a Shelf Registration Statement is not declared
effective on or prior to the 225th day following the Closing Time (or, if
a Shelf Registration Statement is required to be filed upon the request of
any Initial Purchaser, within 90 days after such request), or
(vi) a Shelf Registration Statement is declared effective by the
SEC but such Shelf Registration Statement ceases to be effective or such
Shelf Registration Statement or the Prospectus included therein ceases to
be usable in connection with resales of Registrable Securities for any
reason and (A) the aggregate number of days in any consecutive 365-day
period for which the Shelf Registration Statement or such Prospectus shall
not be effective or usable exceeds 90 days, (B) the Shelf Registration
Statement or such Prospectus shall not be effective or usable for more
than two periods (regardless of duration) in any consecutive 365-day
period or (C) the Shelf Registration Statement or such Prospectus shall
not be effective or usable for a period of more than 45 consecutive days,
or
(vii) the Exchange Offer Registration Statement is declared
effective by the SEC but, if the Exchange Offer Registration Statement is
being used in connection with the resale of Exchange Securities as
contemplated by Section 3(f)(B) of this Agreement, the Exchange Offer
Registration Statement ceases to be effective or the Exchange Offer
Registration Statement or the Prospectus included therein ceases to be
usable in connection with resales of Exchange Securities for any reason
during the 180-day period referred to in Section 3(f)(B) of this Agreement
(as such period may be extended pursuant to the last paragraph of Section
3 of this Agreement) and (A) the aggregate number of days in any
consecutive 365-day period for which the Exchange Offer Registration
Statement or such Prospectus shall not be effective or usable exceeds 90
days, (B) the Exchange Offer Registration Statement or such Prospectus
shall not be effective or usable for more than two periods (regardless of
duration) in any consecutive 365-day period or (C) the Exchange Offer
Registration Statement or the Prospectus shall not be effective or usable
for a period of more than 30 consecutive days,
(each of the events referred to in clauses (i) through (vii) above being
hereinafter called a "Registration Default"), the per annum interest rate borne
by the Registrable Securities shall be
11
increased ("Additional Interest") by one-quarter of one percent (0.25%) per
annum immediately following such 90-day period in the case of clause (i) above,
immediately following such 180-day period in the case of clause (ii) above,
immediately following such 45-day period in the case of clause (iii) above,
immediately following any such 180-day period or 60-day period, whichever ends
later, in the case of clause (iv) above, immediately following any such 225-day
period or 90-day period, whichever ends first, in the case of clause (v) above,
immediately following the 90th day in any consecutive 365-day period, as of the
first day of the third period in any consecutive 365-day period or immediately
following the 45th consecutive day, whichever occurs first, that a Shelf
Registration Statement shall not be effective or a Shelf Registration Statement
or the Prospectus included therein shall not be usable as contemplated by clause
(vi) above, or immediately following the 90th day in any consecutive 365-day
period, as of the first day of the third period in any consecutive 365-day
period or immediately following the 30th consecutive day, whichever occurs
first, that the Exchange Offer Registration Statement shall not be effective or
the Exchange Offer Registration Statement or the Prospectus included therein
shall not be usable as contemplated by clause (vii) above, which rate will be
increased by an additional one-quarter of one percent (0.25%) per annum
immediately following the first 90-day period that any Additional Interest
continues to accrue under any circumstances; provided that the aggregate
increase in such annual interest rate under this Section 2(e) may in no event
exceed one-half of one percent (0.50%) per annum. Upon the filing of the
Exchange Offer Registration Statement after the 90-day period described in
clause (i) above, the effectiveness of the Exchange Offer Registration Statement
after the 180-day period described in clause (ii) above, the consummation of the
Exchange Offer after the 45-day period described in clause (iii) above, the
filing of the Shelf Registration Statement after the 180-day period or 60-day
period day, as the case may be, described in clause (iv) above, the
effectiveness of a Shelf Registration Statement after the 225-day period or
90-day period, as the case may be, described in clause (v) above, the Shelf
Registration Statement once again being effective or the Shelf Registration
Statement and the Prospectus included therein becoming usable in connection with
resales of Registrable Securities, as the case may be, in the case of clause
(vi) above, or the Exchange Offer Registration Statement once again becoming
effective or the Exchange Offer Registration Statement and the Prospectus
included therein becoming usable in connection with resales of Exchange
Securities, as the case may be, in the case of clause (vii) thereof, the
interest rate borne by the Securities from the date of such filing,
effectiveness, consummation or resumption of effectiveness or useability, as the
case may be, shall be reduced to the original interest rate so long as no other
Registration Default shall have occurred and shall be continuing at such time
and the Company is otherwise in compliance with this paragraph; provided,
however, that, if after any such reduction in interest rate, one or more
Registration Defaults shall again occur, the interest rate shall again be
increased pursuant to the foregoing provisions.
The Company shall notify the Trustee within three business days after each
and every date on which an event occurs or fails to occur 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 Registrable Securities, on or before the applicable
seminannual 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.
12
Anything herein to the contrary notwithstanding, any Holder who was, at
the time the Exchange Offer was pending and consummated, eligible to exchange,
and did not validly tender, its Securities for Exchange Securities in the
Exchange Offer will not be entitled to receive any Additional Interest. For
purposes of clarity, it is hereby acknowledged and agreed that, under current
interpretations of law by the SEC, Initial Purchasers holding unsold allotments
of Securities acquired from the Company are not eligible to participate in the
Exchange Offer.
(f) Specific Enforcement. Without limiting the remedies available to the
Initial Purchasers and the Holders, the Company acknowledges that any failure by
the Company to comply with its obligations under Sections 2(a) through 2(d)
hereof may result in material irreparable injury to the Initial Purchasers, the
Holders or the Participating Broker-Dealers 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,
any Holder and any Participating Broker-Dealer may obtain such relief as may be
required to specifically enforce the Company's obligations under Sections 2(a)
through 2(d) hereof.
3. Registration Procedures. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement or, if
required, Registration Statements, within the time periods specified in
Section 2, on the appropriate form under the 1933 Act, which form (i)
shall be selected by the Company, (ii) shall, in the case of a Shelf
Registration Statement, be available for the sale of the Registrable
Securities by the selling Holders thereof and (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, and use its 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; cause each Prospectus to be
supplemented by any required prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the 1933 Act; and comply with the
provisions of the 1933 Act and the 1934 Act with respect to the
disposition of all Securities covered by each Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities, at least ten 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 elected by the
Majority Holders; (ii) furnish to each Holder of Registrable Securities,
to counsel for the Initial Purchasers, to counsel for the Holders, if any,
and to each underwriter of an underwritten offering of Registrable
Securities, if any, without charge, as many copies of
13
each Prospectus, including each preliminary Prospectus, and any amendment
or supplement thereto and such other documents as such Holder, counsel or
underwriter may reasonably request, including financial statements and
schedules and, if such Holder, counsel or underwriter so requests, all
exhibits (including those incorporated by reference) in order to
facilitate the public sale or other disposition of the Registrable
Securities; and (iii) subject to the penultimate paragraph of this Section
3, the Company hereby consents to the use of the Prospectus, including
each preliminary Prospectus, or any amendment or supplement thereto by
each of the Holders and underwriters of Registrable Securities in
connection with the offering and sale of the Registrable Securities
covered by any Prospectus or any amendment or supplement thereto;
(d) use its 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, to cooperate
with the Holders and the underwriters of any Registrable Securities in
connection with any filings required to be made with the NASD, to keep
each such registration or qualification effective during the period such
Registration Statement is required to be effective and do any and all
other acts and things which may be reasonably necessary or advisable to
enable such Holder to consummate the disposition in each such jurisdiction
of such Registrable Securities owned by such Holder; provided, however,
that the Company shall not be required to (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 if it is not then so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities and counsel for such Holders promptly and, if
requested by such Holder or counsel, 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 or supplements to a Registration Statement or
Prospectus or for additional information after a 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) if between the effective date of a Registration Statement
and the closing of any sale of Registrable Securities covered thereby the
representations and warranties of the Company contained in any
underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to such offering cease to be true and correct,
(v) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose, (vi) of the suspension of use of the Prospectus as a result
of the happening of any event or the discovery of any facts or the taking
of any action during the period a Shelf Registration Statement is
effective which is contemplated in Section 2(d)(i)(A) or 2(d)(i)(B) or
which makes any statement made in such Shelf Registration Statement or the
related Prospectus untrue in any material respect or which constitutes an
omission to state a material fact in such Shelf Registration
14
Statement or Prospectus and (vii) of any determination by the Company that
a post-effective amendment to a Registration Statement would be
appropriate. Without limitation to any other provisions of this Agreement,
the Company agrees that this Section 3(e) shall also be applicable,
mutatis mutandis, with respect to the Exchange Offer Registration
Statement and the Prospectus included therein to the extent that such
Prospectus is being used by Participating Broker-Dealers as contemplated
by Section 3(f);
(f) (A) in the case of an Exchange Offer, (i) include in the
Exchange Offer Registration Statement (x) a "Plan of Distribution" section
substantially in the form set forth in Annex B hereto or other such form
as is reasonably acceptable to Xxxxxxx Xxxxx Xxxxxx covering the use of
the Prospectus included in the Exchange Offer Registration Statement by
broker-dealers who have exchanged their Registrable Securities for
Exchange Securities for the resale of such Exchange Securities and (y) a
statement to the effect that any such broker-dealers who wish to use the
related Prospectus in connection with the resale of Exchange Securities
acquired as a result of market-making or other trading activities will be
required to notify the Company to that effect, together with instructions
for giving such notice (which instructions shall include a provision for
giving such notice by checking a box or making another appropriate
notation on the related letter of transmittal) (each such broker-dealer
who gives notice to the Company as aforesaid being hereinafter called a
"Notifying Broker-Dealer"), (ii) furnish to each Notifying Broker-Dealer
who desires to participate in the Exchange Offer, 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 broker-dealer may reasonably request, (iii)
include in the Exchange Offer Registration Statement a statement that any
broker-dealer who holds Registrable Securities acquired for its own
account as a result of market-making activities or other trading
activities (a "Participating Broker-Dealer"), and who receives Exchange
Securities for Registrable Securities pursuant to the Exchange Offer, may
be a statutory underwriter and must deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such
Exchange Securities, (iv) subject to the penultimate paragraph of this
Section 3, the Company hereby consents to the use of the Prospectus
forming part of the Exchange Offer Registration Statement or any amendment
or supplement thereto by any Notifying Broker-Dealer in connection with
the sale or transfer of Exchange Securities, and (v) include in the
transmittal letter or similar documentation to be executed by an exchange
offeree in order to participate in the Exchange Offer the following
provision:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in, a
distribution of Exchange Securities. If the undersigned is a broker-dealer
that will receive Exchange Securities for its own account in exchange for
Registrable Securities, it represents that the Registrable Securities to
be exchanged for Exchange Securities were acquired by it as a result of
market-making activities or other trading activities and acknowledges that
it will deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of such Exchange Securities pursuant to the
Exchange Offer; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the 1933 Act;"
15
(B) to the extent any Notifying Broker-Dealer participates in the
Exchange Offer, (i) the Company shall use its reasonable best efforts to
maintain the effectiveness of the Exchange Offer Registration Statement
for a period of 180 days (subject to extension pursuant to the last
paragraph of this Section 3) following the last date on which exchanges
are accepted pursuant to the Exchange Offer, and (ii) the Company will
comply, insofar as relates to the Exchange Offer Registration Statement,
the Prospectus included therein and the offering and sale of Exchange
Securities pursuant thereto, with its obligations under Section 2(b)(D),
the last paragraph of Section 2(b), Section 3(c), 3(d), 3(e), 3(i), 3(j),
3(k), 3(o) and 3(p), and the last two paragraphs of this Section 3 as if
all references therein to a Shelf Registration Statement, the Prospectus
included therein and the Holders of Registrable Securities referred,
mutatis mutandis, to the Exchange Offer Registration Statement, the
Prospectus included therein and the applicable Notifying Broker-Dealers
and, for purposes of this Section 3(f), all references in any such
paragraphs or sections to the "Majority Holders" shall be deemed to mean,
solely insofar as relates to this Section 3(f), the Notifying
Broker-Dealers who are the Holders of the majority in aggregate principal
amount of the Exchange Securities which are Registrable Securities;
(C) the Company shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration
Statement as would otherwise be contemplated by Section 3(b)
or 3(k) hereof, or take any other action as a result of this
Section 3(f), at any time after the 180th day (subject to
extension pursuant to the last paragraph of this Section 3)
after the last date on which exchanges are accepted pursuant
to the Exchange Offer, and neither Notifying Broker-Dealers
nor any other Person shall be authorized by the Company to,
and shall not, deliver such Prospectus after such period in
connection with resales contemplated by this Section 3; and
(D) In the case of any Exchange Offer Registration Statement, the
Company agrees to deliver to the Initial Purchasers on behalf
of the Participating Broker-Dealer upon the effectiveness of
the Exchange Offer Registration Statement (i) an opinion of
counsel or opinions of counsel reasonably satisfactory to the
Initial Purchasers, (ii) officers' certificates substantially
in the form customarily delivered in a public offering of debt
securities and (iii) a comfort letter or comfort letters in
customary form to the extent permitted by Statement on
Auditing Standards No. 72 of the American Institute of
Certified Public Accountants (or if such a comfort letter is
not permitted, an agreed upon procedures letter in customary
form) from the Company'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) at least as broad in scope and
coverage as the comfort letter or comfort letters delivered to
the Initial Purchasers in connection with the initial sale of
the Securities to the Initial Purchasers;
16
(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 and counsel for any
underwriters of Registrable Securities copies of any request by the SEC or
any state securities authority for amendments or supplements to a
Registration Statement or Prospectus or for additional information;
(h) use its reasonable best effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement as soon as
practicable and provide immediate notice to each Holder of the withdrawal
of any such order;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendments thereto
(without documents incorporated or deemed to be incorporated therein by
reference or exhibits thereto, unless requested), if such documents are
not available via the SEC XXXXX database;
(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 cause
such Registrable Securities to be in such denominations (consistent with
the provisions of the Indenture) and in a form eligible for deposit with
the Depositary and registered in such names as the selling Holders or the
underwriters, if any, may reasonably request in writing at least one
business day 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 as contemplated by Section
3(e)(vi) hereof, use its reasonable best efforts to prepare a supplement
or post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Securities, 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 in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading. The Company agrees to notify each
Holder to suspend use of the Prospectus as promptly as practicable after
the occurrence of such an event, and each Holder hereby agrees to suspend
use of the Prospectus until the Company has amended or supplemented the
Prospectus to correct such misstatement or omission or, alternatively, to
notify the Holders that no such amendment or supplement is necessary. 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) obtain CUSIP numbers for all Exchange Securities or
Registrable Securities, as the case may be, not later than the effective
date of a Registration Statement, and
17
provide the Trustee with printed or word-processed certificates for the
Exchange Securities or Registrable Securities, as the case may be, in a
form eligible for deposit with the Depositary;
(m) (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 and the
Holders to effect such changes, if any, to the Indenture as may be
required for the Indenture to be so qualified in accordance with the terms
of the TIA and (iii) execute, and use its best efforts to cause the
Trustee to execute, all documents as may be required to effect such
changes, if any, 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;
(n) in the case of a Shelf Registration, the holders of a majority
in principal amount of the Registrable Securities registered pursuant to
such Shelf Registration Statement shall have the right to direct the
Company to effect not more than one underwritten registration and, in
connection with such underwritten registration, the Company shall enter
into agreements (including underwriting agreements or similar agreements)
and take all other customary and appropriate actions (including those
reasonably requested by the holders of a majority in principal amount of
the Registrable Securities being sold) in order to expedite or facilitate
the disposition of such Registrable Securities and in such connection, in
a manner that is reasonable and customary:
(i) make such representations and warranties to the Holders
of such Registrable Securities and the underwriters, in form,
substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings as may be reasonably
requested by such Holders and underwriters;
(ii) obtain opinions of counsel to the Company (which counsel
and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, and the Holders of a
majority in principal amount of the Registrable Securities being
sold) addressed to each selling Holder and the underwriters,
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 with
respect to such Shelf Registration Statement and the Prospectus
included therein, all amendments and supplements thereto and all
documents incorporated or deemed to be incorporated by reference
therein from the Company's independent certified public accountants
and from the independent certified public accountants for any other
Person or any business or assets whose financial statements are
included or incorporated by reference in the Shelf Registration
Statement, each addressed to the underwriters, and use reasonable
best efforts to have such letters addressed to the selling Holders
of Registrable Securities, 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 and such letters to
18
be delivered at the time of the pricing of such underwritten
registration with an update to such letter to be delivered at the
time of closing of such underwritten registration;
(iv) if an underwriting agreement or other similar agreement
is entered into, cause the same to set forth indemnification and
contributions provisions and procedures substantially equivalent to
the indemnification and contributions provisions and procedures set
forth in Section 5 hereof with respect to the underwriters and all
other parties to be indemnified pursuant to Section 5 hereof or such
other indemnification and contributions as shall be satisfactory to
the Company, the applicable underwriters and the Holders of the
majority in principal amount of the Registrable Securities being
sold; and
(v) deliver such other documents and certificates as may be
reasonably requested and as are customarily delivered in similar
underwritten offerings.
The documents referred to in Sections 3(n)(ii) and 3(n)(v) shall be
delivered at the closing under any underwriting or similar agreement as
and to the extent required thereunder. In the case of any such
underwritten offering, the Company shall provide written notice to the
Holders of all Registrable Securities of such underwritten offering at
least 30 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 15 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;
(o) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Registrable Securities
and any underwriters participating in any disposition pursuant to a Shelf
Registration Statement and any counsel or accountant retained by such
Holders or underwriters, all financial statements and other records,
documents and properties of the Company reasonably requested by any such
Persons, and cause the respective officers, directors, employees, and any
other agents of the Company to supply all information reasonably requested
by any such Persons in connection with a Shelf Registration Statement;
(p) (i) in the case of an Exchange Offer, 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 documents to the Initial Purchasers, and make such changes in any
such documents prior to the filing thereof as the Initial Purchasers or
their counsel may reasonably request; (ii) in the case of a Shelf
Registration, 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, to the Initial Purchasers, to the underwriter or underwriters,
of an underwritten offering of Registrable Securities, and to counsel for
any such Holders,
19
Initial Purchasers or underwriters, and make such changes in any such
document prior to the filing thereof as the Holders of Registrable
Securities, the Initial Purchasers, any such underwriter or underwriters
or any of their respective counsel may reasonably request; and (iii) cause
the representatives of the Company to be available for discussion of such
documents as shall be reasonably requested by the Holders of Registrable
Securities, the Initial Purchasers on behalf of such Holders or any
underwriter, and shall not at any time make any filing of any such
document of which such Holders, the Initial Purchasers on behalf of such
Holders, their counsel or any underwriter shall not have previously been
advised and furnished a copy or to which such Holders, the Initial
Purchasers on behalf of such Holders, their counsel or any underwriter
shall reasonably object within a reasonable time period;
(q) in the case of a Shelf Registration, use its reasonable best
efforts to cause the Registrable Securities to be rated with the
appropriate rating agencies, if so requested by the Majority Holders of
Registrable Securities or by the underwriter or underwriters of an
underwritten offering, unless the Registrable Securities are already so
rated;
(r) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC and, with respect to each
Registration Statement and each post-effective amendment, if any, thereto
and each filing by the Company of an Annual Report on Form 10-K, make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering at least twelve months which shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder;
(s) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter and its counsel;
(t) in the case of a Shelf Registration, 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 the 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 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; and
(u) in the case of a Shelf Registration, use its 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 by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if
any.
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Securities to furnish to the Company such information
regarding such Holder and the proposed distribution by such Holder of such
Registrable Securities as the Company may from time to time reasonably
20
request in writing and require such Holder to agree in writing to be bound by
all provisions of this Agreement applicable to such Holder.
In the case of a Shelf Registration Statement, each Holder agrees and, in
the event that any Participating Broker-Dealer is using the Prospectus included
in the Exchange Offer Registration Statement in connection with the sale of
Exchange Securities pursuant to Section 3(f), each such Participating
Broker-Dealer agrees that, upon receipt of any notice from the Company of the
happening of any event or the discovery of any facts of the kind described in
Section 3(e)(ii), 3(e)(iii) or 3(e)(v) through 3(e)(vii) hereof, such Holder or
Participating Broker-Dealer, as the case may be, will forthwith discontinue
disposition of Registrable Securities pursuant to a Registration Statement until
receipt by such Holder or Participating Broker-Dealer, as the case may be, of
(i) the copies of the supplemented or amended Prospectus contemplated by Section
3(k) hereof or (ii) written notice from the Company that the Shelf Registration
Statement or the Exchange Offer Registration Statement, respectively, are once
again effective or that no supplement or amendment is required. If so directed
by the Company, such Holder or Participating Broker-Dealer, as the case may be,
will deliver to the Company (at the Company's expense) all copies in its
possession, other than permanent file copies then in its possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice. Nothing in this paragraph shall prevent the accrual of
Additional Interest on any Securities or Exchange Securities.
If the Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to the immediately preceding paragraph, the
Company shall use its reasonable best efforts to file and have declared
effective (if an amendment) as soon as practicable thereafter an amendment or
supplement to the Shelf Registration Statement or the Exchange Offer
Registration Statement or both, as the case may be, or the Prospectus included
therein and shall extend the period during which the Shelf Registration
Statement or the Exchange Offer Registration Statement or both, as the case may
be, shall be maintained effective pursuant to this Agreement (and, if
applicable, the period during which Participating Broker-Dealers may use the
Prospectus included in the Exchange Offer Registration Statement pursuant to
Section 3(f) hereof) by the number of days during the period from and including
the date of the giving of such notice to and including the earlier of the date
when the Holders or Participating Broker-Dealers, respectively, shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions and the effective date of written notice from the Company to
the Holders or Participating Broker-Dealers, respectively, that the Shelf
Registration Statement or the Exchange Offer Registration Statement,
respectively, are once again effective or that no supplement or amendment is
required.
4. Underwritten Registrations. In the event that the Company fails to
effect the Exchange Offer or file any Shelf Registration Statement and maintain
the effectiveness of any Shelf Registration Statement as provided herein, the
Company shall not file any Registration Statement with respect to any securities
(within the meaning of Section 2(l) of the 0000 Xxx) of the Company other than
Registrable Securities.
If any of the Registrable Securities covered by any Shelf Registration are
to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Majority Holders of such Registrable
21
Securities included in such offering, subject to the consent of the Company,
which consent shall not be unreasonably withheld.
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 and other documents required under the terms of such
underwriting arrangements.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Initial
Purchaser, each Holder, each Participating Broker-Dealer, each underwriter who
participates in an offering of Registrable Securities (each, an "Underwriter")
and each Person, if any, who controls any Initial Purchaser, Holder,
Participating Broker-Dealer or Underwriter within the meaning of either 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 pursuant to which Exchange Securities or Registrable Securities
were registered under the 1933 Act, including all documents incorporated
therein by reference, or any 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
preliminary prospectus or Prospectus or any 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 any such settlement is
effected with the written consent of the Company; and
(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
22
furnished to the Company by any Initial Purchaser, Holder, Participating
Broker-Dealer or Underwriter with respect to such Initial Purchaser, Holder,
Participating Broker-Dealer or Underwriter, as the case may be, expressly for
use in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto) or made in reliance upon the Statements
of Eligibility and Qualification of Trustees (Form T-1) under the 1939 Act filed
as exhibits to the Registration Statement.
(b) Each Holder, each Initial Purchaser, each Participating
Broker-Dealer and each Underwriter, severally but not jointly, agrees to
indemnify and hold harmless the Company, each director of the Company, each
officer of the Company, each other Initial Purchaser, each other Participating
Broker-Dealer, each other Underwriter and each other selling Holder and each
Person, if any, who controls the Company, any Initial Purchaser, any
Underwriter, any Participating Broker-Dealer 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 5(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,
Initial Purchaser, Underwriter or Participating Broker-Dealer furnished to the
Company by such Holder, Initial Purchaser, Underwriter or Participating
Broker-Dealer, respectively, 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, Initial Purchaser,
Underwriter or Participating Broker-Dealer shall be liable for any claims
hereunder in excess 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 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
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying 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 5 (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.
23
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this Section 5 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 indemnifying party or parties
on the one hand and of the indemnified party or parties on the other hand in
connection with the statements or omissions that resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party or
parties on the one hand and the indemnified party or parties on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by such indemnifying party
or parties or such indemnified party or parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Company, the Holders, and the Initial Purchasers agree that it
would not be just or equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation (even if the Initial Purchasers 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 aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 5 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 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 5, no Initial Purchaser or
Holder, Participating Broker-Dealer or Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
Registrable Securities sold by it were offered exceeds the amount of any damages
that such Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter
has otherwise been required to pay by reason of any 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 5, 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, Holder, Participating
Broker-Dealer or Underwriter, as the case may be, and each director of the
Company, each officer of the Company who signed the Registration Statement and
each Person, if any, who controls the Company 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 respective obligations of the Initial
Purchasers, Holders, Participating Broker-Dealers and
24
Underwriters to contribute pursuant to this Section 5 are several in proportion
to the principal amount of Securities purchased by them and not joint.
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
any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter or any
Person controlling any Initial Purchaser, Holder, Participating Broker-Dealer or
Underwriter, or by or on behalf of the Company, its officers or directors or any
Person controlling the Company, (iii) acceptance of any of the Exchange
Securities and (iv) any sale of Registrable Securities or Exchange Securities
pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the 1934 Act, the Company
covenants that it will file all reports required to be filed by it under Section
13(a) or 15(d) of the 1934 Act and the rules and regulations adopted by the SEC
thereunder, that if it ceases to be so required to file such reports, it will
upon the request of any Holder or beneficial owner of Registrable Securities (i)
make publicly available such information (including, without limitation, the
information specified in Rule 144(c)(2) under the 0000 Xxx) as is necessary to
permit sales pursuant to Rule 144 under the 1933 Act, (ii) deliver or cause to
be delivered, promptly following a request by any Holder or beneficial owner of
Registrable Securities or any prospective purchaser or transferee designated by
such Holder or beneficial owner, such information (including, without
limitation, the information specified in Rule 144A(d)(4) under the 0000 Xxx) as
is necessary to permit sales pursuant to Rule 144A under the 1933 Act, and (iii)
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 (x) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, (y) Rule 144A under the 1933 Act, as
such Rule may be amended from time to time, or (z) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder or
beneficial owner of Registrable Securities, the Company will deliver to such
Holder a written statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into nor
will the Company on or 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 and will not in any way
conflict with and are not and will not be inconsistent with the rights granted
to the holders of any of the Company's other issued and outstanding securities
under any other agreements entered into by the Company or any of its
subsidiaries.
(c) 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 has 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.
25
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery (i)
if to a Holder or Participating Broker-Dealer (other than an Initial Purchaser),
at the most current address set forth on the records of the registrar under the
Indenture, (ii) if to an Initial Purchaser, at the most current address given by
such Initial Purchaser to the Company by means of a notice given in accordance
with the provisions of this Section 6(d), which address initially is the address
set forth in the Purchase Agreement; (iii) if to the Company, initially at the
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(d) and (iv) if to any Underwriter, at the most current address given
by such Underwriter to the Company by means of a notice given in accordance with
the provisions of this Section 6(d), which address initially shall be the
address set forth in the applicable underwriting agreement.
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, first class, postage prepaid, if mailed;
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, at the
address specified in the Indenture.
(e) 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 Registrable Securities
in violation of the terms hereof or 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.
(f) Third Party Beneficiary. Each Holder and Participating Broker-Dealer
shall be a third party beneficiary of the agreements made hereunder between the
Company, 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. Each Holder, by its acquisition of Securities, shall be
deemed to have agreed to the provisions of Section 5(b) hereof.
(g) 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.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
26
(i) Restriction on Resales. If (i) the Company or any of its
subsidiaries or affiliates (as defined in Rule 144 under the 0000 Xxx) shall
redeem, purchase or otherwise acquire any Registrable Security or any Exchange
Security which is a "restricted security" within the meaning of Rule 144 under
the 1933 Act, the Company will deliver or cause to be delivered such Registrable
Security or Exchange Security, as the case may be, to the Trustee for
cancellation and neither the Company nor any of its subsidiaries or affiliates
will hold or resell such Registrable Security or Exchange Security or issue any
new Security or Exchange Security to replace the same.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(k) 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.
[SIGNATURE PAGE FOLLOWS]
27
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
NORTH FORK BANCORPORATION, INC.
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
Title: Executive Vice President and Chief
Financial Officer
Confirmed and accepted
as of the date first above written:
XXXXXXX XXXXX XXXXXX INC.
And the other parties referred to in Annex A hereto
By: XXXXXXX XXXXX BARNEY INC.
By: /s/ Xxxxx X. Xxxxxxxxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxxxxxxxx
Title: Managing Director
For itself and on behalf of the other Initial Purchasers
ANNEX A
INITIAL PURCHASERS
XXXXXXX XXXXX XXXXXX INC.
XXXXXX BROTHERS INC.
XXXXX, XXXXXXXX & XXXXX, INC.
SANDLER X'XXXXX & PARTNERS, L.P.
ANNEX B
PLAN OF DISTRIBUTION
Each broker-dealer that receives new notes for its own account under the
exchange offer must acknowledge that it will deliver a prospectus in connection
with any resale of those notes. This prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer for resales of
new notes received in exchange for original notes that had been acquired as a
result of market-making or other trading activities. We have agreed that, for a
period of 180 days after the expiration date of the exchange offer, we will make
this prospectus, as it may be amended or supplemented, available to any
broker-dealer for use in connection with any such resale. Any broker-dealers
required to use this prospectus and any amendments or supplements to this
prospectus for resales of the new notes must notify us of this fact by checking
the box on the letter of transmittal requesting additional copies of these
documents.
Notwithstanding the foregoing, we are entitled under the registration
rights agreements to suspend the use of this prospectus by broker-dealers under
specified circumstances. For example, we may suspend the use of this prospectus
if:
- the SEC or any state securities authority requests an amendment or
supplement to this prospectus or the related registration statement or
additional information;
- the SEC or any state securities authority issues any stop order suspending
the effectiveness of the registration statement or initiates proceedings
for that purpose;
- we receive notification of the suspension of the qualification of the new
notes for sale in any jurisdiction or the initiation or threatening of any
proceeding for that purpose;
- the suspension is required by law; or
- an event occurs which makes any statement in this prospectus untrue in any
material respect or which constitutes an omission to state a material fact
in this prospectus.
If we suspend the use of this prospectus, the 180-day period referred to
above will be extended by a number of days equal to the period of the
suspension.
We will not receive any proceeds from any sale of new notes by
broker-dealers. New notes received by broker-dealers for their own account under
the exchange offer may be sold from time to time in one or more transactions in
the over-the-counter market, in negotiated transactions, through the writing of
options on those notes or a combination of those methods, at market prices
prevailing at the time of resale, at prices related to prevailing market prices
or at negotiated prices. Any resales may be made directly to purchasers or to or
through brokers or dealers who may receive compensation in the form of
commissions or concessions from the selling broker-dealer or the purchasers of
the new notes. Any broker-dealer that resells new notes received by it for its
own account under the exchange offer and any broker or dealer that
28
participates in a distribution of the new notes may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit on any
resale of new notes and any commissions or concessions received by these persons
may be deemed to be underwriting compensation under the Securities Act. The
letter of transmittal states that, by acknowledging that it will deliver and by
delivering a prospectus, a broker- dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
We have agreed to pay all expenses incidental to the exchange offer other
than commissions and concessions of any broker or dealer and will indemnify
holders of the notes, including any broker-dealers, against certain liabilities,
including liabilities under the Securities Act.
