Exhibit 4.15
REGISTRATION RIGHTS AGREEMENT
(SENIOR SUBORDINATED INCREASING RATE NOTES)
193
EXHIBIT B-1
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REGISTRATION RIGHTS
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Senior Subordinated Increasing Rate Notes
Terms defined in the Bridge Financing Agreement dated as of December 1,
1999 (the "Agreement"), among Citation Corporation (the "Company") and Citation
Funding, Inc., a Delaware corporation, and First Union Investors, Inc., a North
Carolina corporation (each individually, a "Purchaser" and collectively, the
"Purchasers") and The Chase Manhattan Bank, a New York banking corporation
unless defined herein are used herein as therein defined.
10. Securities Subject
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(a) Definitions.
"Holder" means the Purchasers or any assignee or transferee of a
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Registrable Security.
"Notes"' means the Notes as defined in the Agreement.
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"Piggy-Back Registration" means a Piggy-Back Registration as defined
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in Section 4.
"Registrable Security" means each Note until (i) a registration
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statement covering such Registrable Security has been declared effective by the
Commission and it has been disposed of pursuant to such effective registration
statement, (ii) it is or may be sold under circumstances in which all of the
applicable conditions of Rule 144 (or any similar provisions then in force)
under the Securities Act are met or may be sold pursuant to Rule 144(k) or (iii)
it has been otherwise transferred, the Company has delivered a new certificate
or other evidence of ownership for it not bearing the legend required pursuant
to the Agreement and it may be resold without subsequent registration under the
Securities Act.
"Required Holders" means the Holder(s) of (or any Underwriter for) 25%
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or more in aggregate principal amount of the outstanding Notes.
"Selling Holder" means a Holder who is selling Registrable Securities
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pursuant to a registration statement.
"Shelf Registration" means the shelf registration filed by the Company
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in accordance with Section 2(a) hereof.
"Underwriter" means a securities dealer that purchases any Registrable
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Securities as principal and not as part of such dealer's market-making
activities.
11. Shelf Registration
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(a) The Company will use its reasonable best efforts to file and cause
the Commission to declare effective a "shelf" registration statement (the "Shelf
Registration") with respect to the Registrable Securities on an appropriate form
pursuant to Rule 415 (or any similar provision that may be adopted by the
Commission) under the Securities Act as soon as practicable after the First
Anniversary unless a registration statement with respect to the Permanent
Financing has been filed.
(b) The Company agrees to use its reasonable best efforts to have the
Shelf Registration declared effective as soon as practicable after the filing
thereof, and to keep the Shelf Registration continuously effective until all of
the Registrable Securities have been redeemed in full or resold pursuant to such
registration statement or, if earlier, the date on which another exemption
exists that permits the public sale of the Registerable Securities under the
Securities Act. The Company further agrees to supplement or amend any Shelf
Registration, if required by the Securities Act or by the Required Holders, and
the Company agrees to furnish to the Holders copies of any such supplement or
amendment promptly after its being filed with the Commission. The Company will
pay all Registration Expenses (as hereinafter defined) in connection with each
Shelf Registration, whether or
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not it becomes effective. In connection with any underwritten offering under a
Shelf Registration, the Purchasers or the Majority Holders, with the consent of
the Company, which shall not be unreasonably withheld (such consent not to be
required in the case where the Purchasers shall act as Underwriters) shall
designate the Underwriter or a group of Underwriters to be utilized in
connection with a public offering of the applicable issue of Registrable
Securities.
12. RESERVED
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13. Piggy-Back Registration
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(a) If the Company proposes to file a registration statement under the
Securities Act with respect to an offering by the Company for its own account or
for the account of any of its security holders of any class of debt security
(other than a registration statement on Form S-4 or S-8 (or any substitute form
that may be adopted by the Commission), the Company's Shelf Registration, the
Company's registration statement with respect to the Permanent Financing or a
registration statement filed in connection with an exchange offer or offering of
securities solely to the Company's existing security holders) (provided that, in
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the case of a registration on demand of such security holders, the holders of a
majority in aggregate principal amount of any such debt securities consent in
writing), then the Company shall give written notice of such proposed filing to
the Holders of Registrable Securities as soon as practicable (but in no event
less than 10 days before the anticipated filing date), and such notice shall
offer such Holders the opportunity to register such principal amount of
Registrable Securities as each such Holder may request (a "Piggy-Back
Registration"); provided that the Holders of Registrable Securities shall not
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have any rights under this Section 4 if either of the Shelf Registration or the
registration statement with respect to the Permanent Financing, the proceeds of
which will be used to redeem the Registrable Securities in full, is effective.
(b) The Company shall use all reasonable efforts to cause the managing
Underwriter or Underwriters of a proposed underwritten offering to permit the
Registrable Securities requested to be included in the registration statement
for such offering to be included on the same terms and conditions as any similar
securities of the Company or of such other security holders included therein.
Notwithstanding the foregoing, if the managing Underwriter or Underwriters of
such offering deliver a written opinion to the Company that either because of
(i) the kind or combination of securities which the Holders, the Company and any
other persons or entities intend to include in such offering or (ii) the size of
the offering which the Holders, the Company and such other persons intend to
make, are such that the success of the offering would be materially and
adversely affected by inclusion of the Registrable Securities requested to be
included, then (a) in the event that the size of the offering is the basis of
such managing Underwriter's opinion, the amount of securities to be offered for
the accounts of Holders shall be reduced pro rata (according to the Registrable
Securities proposed for registration) to the extent necessary to reduce the
total amount of securities to be included in such offering to the amount
recommended by such managing Underwriter or Underwriters; provided that if
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securities are being offered for the account of other persons or entities as
well as the Company, then with respect to the Registrable Securities intended to
be offered by Holders, the proportion by which the amount of such class of
securities intended to be offered by Holders is reduced shall not exceed the
proportion by which the amount of such class of securities intended to be
offered by such other persons or entities is reduced; and (b) in the event that
the kind (or combination) of securities to be offered is the basis of such
managing Underwriter's opinion, (x) the Registrable Securities to be included in
such offering shall be reduced as described in clause (a) above (subject to the
proviso in clause (a)) or, (y) if the actions described in clause (x) would, in
the judgment of the managing Underwriter, be insufficient to substantially
eliminate the adverse effect that inclusion of the Registrable Securities
requested to be included would have on such offering, such Registrable
Securities will be excluded from such offering.
14. Holdback Agreements
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(a) Restrictions on Public Sale by Holder of Registrable Securities.
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Each Holder whose securities are included in a registration statement agrees not
to effect any public sale or distribution of the issue being registered or a
similar security of the Company or any securities convertible into or
exchangeable or exercisable for such securities, including a sale pursuant to
Rule 144 under the Securities Act, during the 14 days prior to, and during the
120-day period beginning on, the effective date of such registration statement
(except as part of such registration), if and to the extent requested by the
Company in the case of a non-underwritten public offering or if and to the
extent requested by the managing Underwriter or Underwriters in the case of an
underwritten public offering.
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(b) Restrictions on Public Sale by the Company. The Company agrees (i)
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not to effect any public sale or distribution of any securities similar to those
being registered in accordance with Section 4 hereof, or any securities
convertible into or exchangeable or exercisable for such securities, during the
14 days prior to, and during the 120-day period (or such shorter period as the
managing Underwriter in any underwritten offering may agree) beginning on, the
effective date of any registration statement (except as part of such
registration statement (x) where the Holder or Holders of a majority of the
Registrable Securities to be included in such registration statement consent or
(y) where Holders are participating pursuant to Section 4 hereof in such
registration statement and such registration statement was filed by the Company
with respect to the sale of securities by the Company or the commencement of a
public distribution of Registrable Securities other than pursuant to a Shelf
Registration); and (ii) that any agreement entered into after the date of the
Agreement pursuant to which the Company issues or agrees to issue any privately
placed securities similar to the Registrable Securities shall contain a
provision under which holders of such securities agree not to effect any public
sale or distribution of any such securities during the periods described in (i)
above, in each case including a sale pursuant to Rule 144 under the Securities
Act (except as part of any such registration, if permitted); provided, however,
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that the provisions of this paragraph (b) shall not prevent the conversion or
exchange of any securities pursuant to their terms into or for other securities.
15. Registration Procedures
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At or prior to the effectiveness of any registration pursuant to Section 2
or 4, the Company will use all reasonable efforts to qualify an indenture with
respect to the securities to be registered under the Trust Indenture Act of
1939, as amended. Whenever the Holders have requested that any Registrable
Securities be registered pursuant to Section 2 hereof, the Company will use all
reasonable efforts to effect the registration of such Registrable Securities in
accordance with the intended method of disposition thereof as promptly as
practicable, and in connection with any such request and with a Shelf
Registration, the Company will as expeditiously as possible:
(a) prepare and file with the Commission a registration statement
on any form for which the Company then qualifies or which counsel for the
Company shall deem appropriate and which form shall be available for the
sale of the Registrable Securities to be registered thereunder in
accordance with the intended method of distribution thereof, and use all
reasonable efforts to cause such filed registration statement to become
effective within the time period described in Section 2 hereof; provided
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that the Company shall be entitled to cause the registration statement to
be withdrawn and the effectiveness thereof to be terminated for a period of
up to 120 days if the Board of Directors determines in good faith that the
required financials are unavailable for reasons beyond the Company's
control or would require premature disclosure of any material corporate
development; and provided (i) that before filing a registration statement
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or prospectus or any amendments or supplements thereto, the Company will
furnish to one firm of counsel selected by the Holder or Holders of a
majority of the Registrable Securities covered by such registration
statement copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel, and (ii) that
after the filing of the registration statement, the Company will promptly
notify each Selling Holder of Registrable Securities covered by such
registration statement of any stop order issued or threatened by the
Commission and take all reasonable actions required to prevent the entry of
such stop order or to remove it if entered;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective in the case of a Shelf Registration, subject to the
provisions of Section 6(a) above, for the period specified in Section 2 and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during
such period in accordance with the intended methods of disposition by the
Selling Holders thereof set forth in such registration statement;
(c) furnish to each Selling Holder and Underwriter, prior to
filing the registration statement or prospectus or any amendment or
supplement thereto, if requested, copies of such registration statement as
proposed to be filed, and thereafter furnish to such Selling Holder and
Underwriter such number of copies of such registration statement, each
amendment and supplement thereto (in each case, if requested, including all
exhibits filed therewith), the prospectus included in such registration
statement
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(including each preliminary prospectus) and such other documents as such
Selling Holder or Underwriter may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such Selling Holder;
(d) use all reasonable efforts to register or qualify such
Registrable Securities under such securities or blue sky laws of such
jurisdictions in the United States as any Selling Holder or managing
Underwriter reasonably (in light of the intended plan of distribution)
requests and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Selling Holder or managing
Underwriter to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such Selling Holder; provided that the
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Company will not be required to (i) qualify generally to do business or to
qualify as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this paragraph (d), (ii) subject
itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction;
(e) use all reasonable efforts to cause such Registrable
Securities to be registered with or approved by such other governmental
agencies or authorities as may be necessary by virtue of the business and
operations of the Company, any of its Affiliates or any of its Subsidiaries
to enable the Selling Holder or Selling Holders thereof to consummate the
disposition of such Registrable Securities;
(f) notify each Selling Holder of such Registrable Securities, at
any time when a prospectus relating thereto is required to be delivered
under the Securities Act, of the occurrence of an event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading and promptly make available to
each Selling Holder any such supplement or amendment;
(g) enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such
Registrable Securities;
(h) make available for inspection by any Selling Holder of such
Registrable Securities, any underwriter participating in any disposition
pursuant to such registration statement and any one firm of attorneys,
accountants or other professionals retained by any such Selling Holder or
underwriter (collectively, the "Inspectors"), all financial and other
records, pertinent corporate documents and properties of the Company and
any Subsidiary (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise their due diligence responsibility,
and cause the officers, directors and employees of the Company and its
Subsidiaries to supply all information reasonably requested by any such
Inspectors in connection with such registration statement. Records which
the Company determines, in good faith, to be confidential and any Records
which it notifies the Inspectors are confidential shall not be disclosed by
the Inspectors unless (i) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in such registration statement
or (ii) the release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction. Each Selling Holder of
such Registrable Securities agrees that information obtained by it as a
result of such inspections shall be deemed confidential and shall not be
used by it as the basis for any market transactions in the securities of
the Company, its Affiliates or its Subsidiaries or otherwise unless and
until such information is made generally available to the public. Each
Selling Holder of such Registrable Securities further agrees that it will,
upon learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and allow the Company,
at its expense, to undertake appropriate action to prevent disclosure of
the Records deemed confidential;
(i) in the event such sale is pursuant to an underwritten
offering, use all reasonable efforts to obtain a comfort letter or comfort
letters from the Company's independent public accountants in customary form
and covering such matters of the type customarily covered by comfort
letters, as the Selling Holders of a majority in aggregate principal amount
of the Registrable Securities being sold or the managing Underwriter,
reasonably requests; and
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(j) otherwise use all reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as reasonably practicable, an
earnings statement covering a period of twelve months, beginning within
three months after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
The Company may require each Selling Holder of Registrable Securities
to promptly furnish in writing to the Company such information regarding the
distribution of the Registrable Securities as it may from time to time
reasonably request and such other information as may be legally required or
reasonably requested in connection with such registration.
Each Selling Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 6(f)
hereof, such Selling Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Selling Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 6(f) hereof, and, if
so directed by the Company, such Selling Holder will deliver to the Company all
copies, other than permanent file copies then in such Selling Holder's
possession, of the most recent prospectus covering such Registrable Securities
at the time of receipt of such notice.
16. Registration Expenses
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In connection with any registration statement required to be filed
pursuant to Section 2 or 4 hereunder, the Company shall pay the following
registration expenses (the "Registration Expenses"): (i) all registration and
filing fees, (ii) fees and expenses of compliance with securities or blue sky
laws (including reasonable fees and disbursements of counsel in connection with
blue sky qualifications of the Registrable Securities), (iii) printing expenses,
(iv) internal expenses of the Company (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), (v) the fees and expenses incurred in connection with the
listing of the Registrable Securities if the Company shall choose to list such
Registrable Securities, (vi) fees and disbursements of counsel for the Company
and customary fees and expenses for independent certified public accountants
retained by the Company (including the expenses of any comfort letters or costs
associated with the delivery by independent certified public accountants of a
comfort letter or comfort letters requested pursuant to Section 6(i) hereof),
(vii) the fees and expenses of any special experts retained by the Company in
connection with such registration, and (viii) reasonable fees and expenses of a
single counsel for the Holders (which counsel shall be selected by the
Purchasers if the Purchasers are Holders) incurred in connection with the
registration hereunder. The Company shall not have any obligation to pay any
underwriting fees, discounts or commissions attributable to the sale of
Registrable Securities, or, except as otherwise provided in clause (viii) above,
any out-of-pocket expenses of the Holders (or any agents who manage their
accounts) or fees and disbursements of any counsel for any underwriter in any
underwritten offering.
17. Indemnification and Contribution
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(a) Indemnification by the Company. The Company agrees to indemnify
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and hold harmless each Selling Holder of Registrable Securities, its officers,
directors and agents, each Person, if any, who controls such Selling Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act or any Affiliate of such Person, from and against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any registration statement or
prospectus relating to the Registrable Securities or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses arise
out of, or are based upon, any such untrue statement or omission or allegation
thereof based upon information furnished in writing to the Company by such
Selling Holder or on such Selling Holder's behalf expressly for use therein;
provided that with respect to any untrue statement or omission or alleged untrue
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statement or omission made in any preliminary prospectus, the indemnity
agreement contained in this paragraph shall not apply to the extent that any
such loss, claim, damage, liability or expense results from the fact that a
current copy of the prospectus was not sent or given to the person asserting any
such loss, claim, damage, liability or expense at or prior to the written
confirmation of the sale of the Registrable Securities concerned to such person
if it is determined that it was the responsibility of such Selling Holder or its
agents to provide such person with a current
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copy of the prospectus and such current copy of the prospectus would have cured
the defect giving rise to such loss, claim, damage, liability or expense. The
Company also agrees to enter into an underwriting agreement with the
Underwriters of the Registrable Securities which shall indemnify their officers,
directors and each person who controls such Underwriters on substantially the
same basis as that of the indemnification of the Selling Holders provided in
this Section 8.
(b) Indemnification by Holder of Registrable Securities. Each Selling
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Holder agrees to indemnify and hold harmless the Company, its directors and
officers and agents and each Person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Selling
Holder, but only with respect to information furnished in writing by such
Selling Holder or on such Selling Holder's behalf expressly for use in any
registration statement or prospectus relating to the Registrable Securities, or
any amendment or supplement thereto, or any preliminary prospectus. In case any
action or proceeding shall be brought against the Company, or its directors or
officers or agents, or any such controlling person, in respect of which
indemnity may be sought against such Selling Holder, such Selling Holder shall
have the rights and duties given to the Company, and the Company or its
directors or officers or agents or such controlling person shall have the rights
and duties given to such Selling Holder, by the preceding paragraph. Each
Selling Holder also agrees to indemnify and hold harmless the Purchasers and any
Affiliate of the Purchasers, including DLJSC, and FUSI, if the Purchasers or any
Affiliate of the Purchasers, including DLJSC, and FUSI act as Underwriters of
the Registrable Securities on substantially the same basis as that of the
indemnification of the Company provided in this Section 8.
(c) Conduct of Indemnification Proceedings. If any action or
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proceeding (including any governmental investigation) shall be brought or
asserted against any Person entitled to indemnification under clauses (a) or (b)
above (an "Indemnified Party") in respect of which indemnity may be sought from
any party who has agreed to provide such indemnification (an "Indemnifying
Party"), the Indemnified Party shall promptly notify the Indemnifying Party in
writing and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Party, and
shall assume the payment of all expenses. Such Indemnified Party shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party unless (i) the Indemnifying Party has agreed
to pay such fees and expenses or (ii) the named parties to any such action or
proceeding (including any impleaded parties) include both such Indemnified Party
and the Indemnifying Party, and such Indemnified Party shall have been advised
by counsel that there is a conflict of interest on the part of counsel employed
by the Indemnifying Party to represent such Indemnified Party (in which case, if
such Indemnified Party notifies the Indemnifying Party in writing that it elects
to employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense of such action
or proceeding on behalf of such Indemnified Party; it being understood, however,
that the Indemnifying Party shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (together with appropriate local counsel) at any time for all
such Indemnified Parties, which firm shall be designated in writing by such
Indemnified Parties) and that such fees and expenses shall be reimbursed as they
are incurred. The Indemnifying Party shall not be liable for any settlement of
any such action or proceeding effected without its written consent, but if
settled with its written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the Indemnifying Party shall
indemnify and hold harmless such Indemnified Parties from and against any loss
or liability (to the extent stated above) by reason of such settlement or
judgment. No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending or threatened proceeding
in respect of which any Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such settlement includes an unconditional release of such Indemnified Party from
all liability on claims that are the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in this Section
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8 is unavailable to the Indemnified Parties in respect of any losses, claims,
damages, liabilities or judgments referred to herein, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages, liabilities and judgments (i) as between the
Company and its respective Indemnified Parties and the Selling Holders and their
respective Indemnified Parties on the one hand and the Underwriters and their
respective Indemnified Parties on the other, in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Holders on the one hand and the Underwriters on the other from the
offering of the Registrable Securities, or if such
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allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Selling Holders on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or judgments, as well as
any other relevant equitable considerations and (ii) as between the Company and
its respective Indemnified Parties on the one hand and each Selling Holder and
their respective Indemnified Parties on the other, in such proportion as is
appropriate to reflect the relative fault of the Company and of each Selling
Holder in connection with such statements or omissions, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Selling Holders on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total proceeds from the offering
(net of underwriting discounts and commissions but before deducting expenses)
received by the Company and the Selling Holders bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the prospectus. The relative fault of
the Company and the Selling Holders on the one hand and of the Underwriters on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
and the Selling Holders or by the Underwriters. The relative fault of the
Company on the one hand and of each Selling Holder on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by such party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Selling Holders agree that it would not be just
and equitable if contribution pursuant to this Section 8(d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages, liabilities, or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Registrable Securities underwritten by it
and distributed to the public offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and no
Selling Holder shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities of such
Selling Holder were offered to the public exceeds the amount of any damages
which such Selling Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
18. Participation in Underwritten Registration
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No Person may participate in any underwritten registration hereunder
unless such Person (a) agrees to sell such Person's 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 reasonably required under the terms of such underwriting
arrangements and these Registration Rights.
19. Rule 144
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If the Company is subject to the requirements of Section 13, 14 or
15(d) of the Exchange Act, the Company covenants that it will file any reports
required to be filed by it under the Securities Act and the Exchange Act so as
to enable Holders to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
under the Securities Act, as such Rule may be amended from time to time, or (b)
any similar rule or regulation hereafter adopted by the Commission. Upon the
reasonable request of any Holder, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
20. Liquidated Damages
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Notwithstanding anything herein to the contrary, for the express
benefit of each Holder the Company agrees that, if a Shelf Registration for the
Notes has either (i) not been filed within 30 days after the First Anniversary
or (ii) not been declared effective 90 days after the First Anniversary, the
Company will pay pro rata to the Holders liquidated damages equal to $0.192 per
full or partial week per $1,000 principal amount of Notes outstanding until such
time as such Shelf Registration has become effective. The Company will also pay
liquidated damages in an amount equal to $0.192 per full or partial week per
$1,000 principal amount of Notes following the effectiveness of the Shelf
Registration or the Permanent Financing Registration Statement, as the case may
be, for which the registration is not available for resales thereunder. Such
liquidated damages shall be payable on the dates and in the manner provided for
the payment of interest on the Notes.
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