EXHIBIT 2.1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of April 8, 2003,
between CNH Global N.V., a Netherlands corporation (the "Company"), on the one
hand, and Fiat S.p.A, an Italian corporation ("Fiat"), Sicind S.p.A, an Italian
corporation ("Sicind" and, together with Fiat, the "Affiliates"), and the other
Shareholders from time to time party hereto, on the other hand.
WHEREAS, the Affiliates together currently own 8,000,000
Series A Automatic Convertible Perpetual Preferred Securities, par value
[EURO] 2.25 per share, with a liquidation preference of $250 per share, of the
Company (the "Preferred Shares") issued to them pursuant to the Issue and
Subscription Agreement dated as of April 3, 2003 and the Issue and Subscription
Agreement dated as of April 4, 2003 (collectively, the "Subscription Agreement")
in each case by and between the Affiliates and the Company;
WHEREAS, the Preferred Shares are convertible, under certain
conditions, into an aggregate of 100,000,000 shares (the "Shares") of common
stock (or such other number as may result from the application of the anti
dilution adjustments set forth in the resolution of the Board of Directors
containing the terms and conditions of the Preferred Shares), par value
[EURO] 2.25 per share, of the Company (the "Common Shares");
WHEREAS, the Company and the Affiliates desire to have the
Preferred Shares and the Shares issuable upon conversion of the Preferred Shares
be subject to the rights described herein;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements set forth herein, the parties agree as follows:
1. Definitions. As used herein, the following terms shall
have the following meanings:
"Agreement" shall mean this Registration Rights Agreement, as
amended, supplemented or otherwise modified from time to time.
"Business Day" shall mean any day other than a Saturday,
Sunday or other day on which the New York Stock Exchange (or, if different, the
principal exchange on which the Common Shares are traded) is not open for
trading.
"Commission" shall mean the Securities and Exchange
Commission.
"Company" shall have the meaning set forth in the preamble and
shall also include the Company's successors.
"Exchange Act" shall mean the U.S. Securities Exchange Act of
1934, as amended from time to time.
"Permitted Transferee" shall mean any affiliate of either of
the Affiliates and any other Person to which Registrable Securities are
transferred in compliance with Section 13 hereof or any Subsidiary of Fiat.
"Person" means any individual, corporation, partnership,
limited partnership, limited liability partnership, limited liability company,
trust, association, organization or other entity.
"Prospectus" shall mean the prospectus included in any
Registration Statement, including any preliminary prospectus, and any such
prospectus as supplemented by any prospectus supplement with respect to the
terms of the offering of any of the Registrable Securities, and by all other
amendments and supplements to such prospectus, and in each case including all
documents incorporated by reference therein.
"Register", "Registered" and "Registration" refer to a
registration of Registrable Securities effected by preparing and filing a
Registration Statement in compliance with the Securities Act and the declaration
or ordering of the effectiveness of such Registration Statement.
"Registrable Securities" shall mean (i) the Preferred
Securities, (ii) the Shares to be received by the Shareholder pursuant to the
conversion of the Preferred Shares and (iii) any securities of the Company
issued or issuable with respect to any Registrable Securities referred to in
clauses (i) or (ii) by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when (w) a Registration
Statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of in accordance with such Registration Statement, (x) they shall have been
distributed pursuant to Rule 144 or Rule 145 (or any successor provision) under
the Securities Act, (y) they shall have been otherwise transferred and (A) new
certificates for them not bearing a legend restricting transfer under the
Securities Act shall have been delivered by the Company and (B) they may be
publicly resold (without volume or method of sale restrictions) without
registration under the Securities Act, or (z) they shall have ceased to be
outstanding. For purposes of this Agreement, a "class" of Registrable Securities
shall mean all Securities with the same terms, provided that, for the avoidance
of doubt, in the case of the Shares, the class shall refer only to the Shares,
and shall not include any Common Shares other than those issued or issuable upon
conversion of the Preferred Shares.
"Registration Expenses" shall mean all fees and expenses
incident to the performance of or compliance with this Agreement as may
reasonably be incurred by the Company for the registration, approval and/or sale
of any Registrable Securities pursuant to this Agreement, including, without
limitation, all registration, filing and National Association of Securities
Dealers, Inc. fees, all fees and expenses of complying with securities or blue
sky laws (including without limitation the filing and examination fees under
state securities laws, and such other fees and expenses as may be reasonably
incurred by the Company for the registration, approval and issuance of the
Registrable
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Securities under various blue sky laws), all word processing, duplicating and
printing expenses, messenger and delivery expenses, the fees and disbursements
of counsel for the Company and of its independent public accountants, including
the expenses of any special audits or "comfort" letters required by or incident
to such performance and compliance, premiums and other costs of policies of
insurance obtained by the Company against liabilities arising out of the public
offering of Registrable Securities being registered, any fees and disbursements
of underwriters, all underwriting discounts and commissions payable by the
holders or otherwise and transfer stamp taxes, if any, relating to Registrable
Securities or this Agreement and any other registration expenses incident to the
registration of the Registrable Securities issued to the Shareholder.
"Registration Statement" shall mean a registration statement
of the Company on Form F-3 (or, if the Company is not then eligible for Form
F-3, such other form for which the Company then qualifies) that is filed by the
Company with the Commission in accordance with Section 2 below. The term
"Registration Statement" shall also include all exhibits and financial
statements and schedules and documents incorporated by reference in such
Registration Statement when it becomes effective under the Securities Act, and
in the case of references to a Registration Statement as of a date subsequent to
the effective date, as amended or supplemented as of such date.
"Securities Act" shall mean the U.S. Securities Act of 1933,
as amended from time to time.
"Shareholder" means each of the Affiliates and, except where
the context clearly indicates otherwise, includes any other Person (including
without limitation any Permitted Transferee):
(i) to whom any Registrable Securities or any rights to
acquire any Registrable Securities are transferred by any Person that was,
immediately prior to such transfer, a Shareholder;
(ii) who continues to hold such Registrable Securities or the
right to acquire such Registrable Securities; and
(iii) to whom the transferring Shareholder has assigned any of
its rights under this Agreement, in whole or in part, in accordance with the
provisions of Section 13 of this Agreement with respect to such Registrable
Securities;
"Subsidiary" means, with respect to any Person, (i) a
corporation more than 50% of the outstanding voting stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person, or by such Person and one or more other Subsidiaries of such
Person, (ii) a partnership in which such Person or a Subsidiary of such Person
holds a majority interest in the equity capital or profits of such partnership,
or (iii) any other Person (other than a corporation or a partnership) in which
such Person, a Subsidiary of such Person or such Person and one or more
Subsidiaries of such Person, directly or indirectly, at the date of
determination, has (x) at
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least a majority ownership interest or (y) the power to elect or direct the
election of a majority of the directors or other governing body of such other
Person.
"Underwritten Offering" means a registration in which
securities of the Company are sold to an underwriter or underwriters on a firm
commitment basis for reoffering to the public.
(b) Capitalized terms used herein but not otherwise defined
herein shall have the same meaning as in the Subscription Agreement. Terms
defined in the singular shall have a comparable meaning when used in the plural,
and vice versa. All matters of an accounting nature in connection with this
Agreement and the transactions contemplated hereby shall be determined in
accordance with U.S. generally accepted accounting principles as in effect from
time to time. As used herein, the neuter gender shall also denote the masculine
and feminine, and the masculine gender shall also denote the neuter and
feminine, where the context so permits. The words "hereof," "herein" and
"hereunder", and words of similar import, when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and section, subsection, paragraph, schedule and exhibit references
are to this Agreement unless otherwise specified.
2. Registration Rights.
(a) Demand Registration. (i) Upon receipt of a request for
Registration hereunder from (A) any Affiliate (or any affiliate thereof) or (B)
any other Shareholder or Shareholders holding in the aggregate not less than 25%
of the number of shares of any class of the Registrable Securities (a "25%
Shareholder," and together with any Affiliate or any affiliate thereof, a
"Requesting Party"), the Company shall, with respect to any request received
from a Requesting Party (or Parties), subject to the terms and conditions of
this Agreement, prepare and file with the Commission, and use commercially
reasonable efforts to have declared effective a Registration Statement under the
Securities Act relating to the offer and sale by the Requesting Party (or
Parties) specified in such request through such method or methods of
distribution as specified in such request and otherwise in accordance with this
Agreement, of the Registrable Securities specified in such request; provided,
that the Shareholders shall be permitted to make only four requests for
Registration hereunder and the Company shall not be required to prepare and file
more than four Registration Statements pursuant to this Agreement, provided
further, that the Company may satisfy its obligations under this Section 2(a) by
(i) filing a shelf Registration Statement on Form F-3 (a "Shelf Registration
Statement") under the Securities Act relating to the offer and sale by the
Shareholder(s) at any time and from time to time on a delayed or continuous
basis in accordance with Rule 415 under the Securities Act, through such method
or methods of distribution as the Requesting Party (or Parties) shall select, of
all of the Registrable Securities and (ii) using commercially reasonable efforts
to keep such Shelf Registration Statement effective under the Securities Act for
so long as permitted by Rule 415 under the Securities Act or, if earlier, until
such time as no Shareholder owns any Registrable Securities. In the event that
the Company elects to satisfy its obligations under this Section 2(a) by filing
a Shelf Registration Statement, then Shareholders shall not be permitted to make
any further
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requests for Registration hereunder and the Company shall not be required to
prepare or file further Registration Statements pursuant to this Agreement,
provided that all of the Registrable Securities have been registered thereunder
or have otherwise become freely tradable under applicable securities laws.
(ii) Within five days following receipt of any request for a
Registration, the Company shall deliver written notice of such request
to all other holders of Registrable Securities of the class or classes
to be registered. Thereafter, the Company shall include in such
Registration any additional Registrable Securities of each such class
which the holder or holders thereof have requested in writing be
included in such Registration, provided that all requests therefor have
been received by the Company within ten days of the Company's having
sent the applicable notice to such holder or holders. All such requests
shall specify the aggregate amount and class of Registrable Securities
to be registered and the intended method of distribution of the same.
(iii) The Issuer shall be deemed to have effected a
Registration if the applicable Registration Statement is declared
effective by the SEC and remains effective for not less than 180 days
(or such shorter period as will terminate when all Registrable
Securities covered by such Registration Statement have been sold or
withdrawn), or, if such Registration Statement relates to an
Underwritten Offering, such longer period as, in the opinion of counsel
for the underwriter or underwriters, is required by law for the
delivery of a Prospectus in connection with the sale of Registrable
Securities by an underwriter or dealer.
(b) Expenses. The Registration Expenses in connection with the
any registration effected pursuant to this Section 2 shall be borne by the
Company.
3. Registration Procedures. If the Company is required to file
a Registration Statement to Register Registrable Securities under the Securities
Act as provided in Section 2, the Company will:
(i) prepare and within 60 days of the receipt of a request for
Registration file with the Commission the Registration Statement
required pursuant to Section 2, and use commercially reasonable efforts
to cause such Registration Statement to become effective as promptly as
practicable thereafter. Prior to filing such Registration Statement or
any amendments thereto with the Commission, the Company shall furnish
to one counsel selected by the requesting Shareholder(s) copies of all
such documents proposed to be filed, which documents will be subject to
the review of such counsel before any such filing is made, and the
Company will comply with any reasonable request made by such counsel to
make changes in any information contained in such documents;
(ii) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the Prospectus used in
connection therewith as may be reasonably requested by any
participating Shareholder (to the extent such request relates to
information relating to such holder) or as may be
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necessary to maintain the effectiveness of such registration and to
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement
until the earliest of (A) the termination of this Agreement pursuant to
Section 18 and (B) such time as all of such securities have been
disposed of;
(iii) furnish to the Shareholder(s) such number of conformed
copies of such Registration Statement and of each such amendment and
supplement thereto (in each case including all exhibits), such number
of copies of the Prospectus contained in such Registration Statement
and any supplements thereto and any other Prospectus filed under Rule
424 under the Securities Act, in conformity with the requirements of
the Securities Act, and such other documents, including documents
incorporated by reference, as the Shareholder(s) may reasonably
request;
(iv) use commercially reasonable efforts to register or
qualify all Registrable Securities registered pursuant to such
Registration Statement under such other securities or blue sky laws of
such jurisdictions as the Shareholder(s) shall reasonably request, to
keep such registration or qualification in effect for so long as such
Registration Statement remains in effect, and take any other action
which may be reasonably necessary or advisable to enable the
Shareholder to consummate the disposition in such jurisdictions of the
securities owned by the Shareholder(s), except that the Company shall
not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it would
not but for the requirements of this clause (iv) be obligated to be so
qualified, to be subject to taxation generally or to consent to general
service of process in any such jurisdiction;
(v) use commercially reasonable efforts to cause all
Registrable Securities covered by such Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the Shareholder to consummate
the disposition of such Registrable Securities;
(vi) notify the selling holders of Registrable Securities and
the managing underwriter or underwriters, if any, and (if requested)
confirm such advice in writing, as soon as reasonably practicable after
notice thereof is received by the Company (A) when the applicable
Registration Statement or any amendment thereto has been filed or
becomes effective and when the applicable Prospectus or any amendment
or supplement thereto has been filed, (B) of any written comments by
the SEC or any request by the SEC or any other federal or state
governmental authority for amendments or supplements to such
Registration Statement or Prospectus or the documents incorporated by
reference therein or for additional information, (C) of the issuance by
the SEC of any stop order suspending the effectiveness of such
Registration Statement or any order preventing or suspending the use of
any preliminary or final Prospectus or the initiation or threat of any
proceedings for such purposes and (D) of the receipt by
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the Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for offering or sale in any
jurisdiction or the initiation or threat of any proceeding for such
purpose;
(vii) promptly notify the Shareholder at any time when the
Company becomes aware that a Prospectus relating to Registrable
Securities is required to be delivered under the Securities Act, of the
happening of any event as a result of which the Prospectus included in
such Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which
they were made, and, at the request of the Shareholder and subject to
Section 4(b)(i) and Section 8 hereof, promptly prepare and furnish to
the Shareholder a reasonable number of copies of a supplement to or an
amendment of such Prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such Prospectus shall
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances
under which they were made;
(viii) make every reasonable effort to prevent or obtain at
the earliest possible moment the withdrawal of any stop order with
respect to the applicable Registration Statement or other order
suspending the use of any preliminary or final Prospectus;
(ix) otherwise use commercially reasonable efforts to comply
with the Securities Act and the Exchange Act and with all applicable
rules and regulations of the Commission, and consider any suggestions
of the Shareholder with respect to such Registration Statement or
Prospectus to ensure such compliance;
(x) provide a transfer agent and registrar for all Registrable
Securities covered by the Registration Statement not later than the
effective date of the Registration Statement;
(xi) use commercially reasonable efforts to list all
Registrable Securities of a class covered by such Registration
Statement on any securities exchange on which any of the Company's
securities of such class are then listed or quoted; and
(xii) upon the reasonable request of the Shareholder,
otherwise use all reasonable efforts to effect the registration of
Registrable Securities under the Securities Act as provided in Section
2.
4. Shareholder's Obligations.
(a) Furnishing Information. The Shareholder shall furnish to
the Company such information regarding the Shareholder and the distribution
proposed by it as the Company may reasonably request, including, without
limitation, providing the Company with questionnaires as are customary for
similar transactions, and which the
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Company may reasonably request or as may be required by applicable securities
laws and regulations, and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement. The
Shareholder agrees to notify the Company as promptly as practicable of any
inaccuracy or change in information previously furnished to the Company or of
the happening of any event, in either case as a result of which any Prospectus
relating to such registration contains an untrue statement of a material fact
regarding the Shareholder or the distribution of such Registrable Securities or
omits to state any material fact regarding the Shareholder or the distribution
of such Registrable Securities required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and to furnish to the Company promptly any additional
information required to correct and update any previously furnished information
or required such that such Prospectus shall not contain, with respect to the
Shareholder or the distribution of such Registrable Securities, an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) Blackouts.
(i) The Company may, by written notice to the Shareholder,
postpone any registration which is requested pursuant to Section 2 or
delivery of a Prospectus pursuant to Section 3(iv), suspend sales under
a Registration Statement filed hereunder or defer the updating of such
filed Registration Statement if (A) the Company reasonably believes
that the use or updating of such Registration Statement or such sale,
as the case may be, would require disclosure of a material non-public
corporate development not otherwise required to be disclosed that the
Company has a valid business purpose for not disclosing, (B) the
Company is in the process of making, or preparing to make, a registered
offering of securities that are the same as, similar to or convertible
into or exchangeable or exercisable for the Shareholder securities with
respect to which postponement, suspension or deferral is being made and
the Company reasonably deems it advisable to temporarily discontinue
disposition of securities by the Shareholder, or (C) the Company
reasonably believes that disposition of securities by the Shareholder
at such time would materially interfere with the business activities or
plans of the Company for the shortest period of time determined in good
faith by the Company to be necessary for such purpose; provided,
however, that the Company shall not be permitted to make such
suspension or deferral (A) more than 2 times during any 12-month
period, (B) for a period exceeding 60 days on any one occasion or (C)
for a period exceeding 90 days in any 12-month period. In the event the
Company makes any such election, the Shareholder agrees to keep
confidential the fact of such election and any information provided by
the Company in connection therewith, including, without limitation,
information regarding the Company's own capital-raising activities and
plans. The Company shall immediately notify the holders upon the
expiration of any period during which it exercised its right under this
Section 4(b)(i).
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(ii) Notwithstanding the blackout rights set forth above in
Section 4(b)(i), the Company may not exercise any blackout rights for a
period of ten Business Days commencing on the effective date of any
Registration Statement.
5. Registration Statement. In connection with the preparation
and filing of a Registration Statement under the Securities Act, the Company
shall:
(a) give the Shareholder and its counsel the opportunity to
participate in the preparation of such Registration Statement, each Prospectus
included therein or filed with the Commission, and each amendment thereof or
supplement thereto; and
(b) provide to a Shareholder or any other Person who
participates as an underwriter and its counsel in connection with the offering
and sale of Registrable Securities reasonable and customary due diligence,
including review of records and access to management and the Company's
independent auditors.
6. Indemnification.
(a) Indemnification by the Company. In the event of any
Registration of any Registrable Securities of the Company under the Securities
Act, the Company will, and hereby does, to the fullest extent permitted by law,
indemnify and hold harmless each Shareholder and its respective directors,
officers, agents and employees, each other Person who participates as an
underwriter in the offering or sale of such Registrable Securities and each
other Person who controls such Shareholder or any such underwriter within the
meaning of the Securities Act or Exchange Act, against any losses, claims,
damages, liabilities, joint or several, to which such Shareholder or any such
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement under which such
Registrable Securities were registered under the Securities Act, any Prospectus
contained therein, or any amendment or supplement thereto, or any document
incorporated by reference therein or 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, and the Company will reimburse the
Shareholder and its respective directors, officers, agents and employees and
each such underwriter and controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceedings (such reimbursement to be
made as such expenses are incurred); provided that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon (i) an untrue statement or alleged untrue statement or omission
or alleged omission made in such Registration Statement or any amendment
thereto, any such Prospectus or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by the Shareholder
for use in the preparation thereof, (ii) the use of any Prospectus after such
time as the obligation of the Company to keep the same effective and current has
expired, or (iii) the use of any Prospectus after
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such time as the Company has advised the Shareholder in writing that the filing
of a post-effective amendment to the Registration Statement or supplement to the
Prospectus is required, except such Registration Statement as so amended or such
Prospectus as so supplemented, and provided further that the Company shall not
be liable to any Person who participates as an underwriter in the offering or
sale of Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of the matters described in (i), (ii) or
(iii) above or such Person's failure to send or give a copy of the final
Prospectus or supplement to the Persons asserting an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final Prospectus or supplement and
the Company had provided a reasonable number of copies of such final Prospectus
or supplement to such Underwriter for delivery. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
the Shareholder or any such underwriter or controlling person and shall survive
the transfer of such securities by the Shareholder. The Company's indemnity
hereunder shall relate only to the Registrable Securities, and the Company shall
otherwise have no indemnity obligations with respect to other securities of the
Company sold by the Shareholder or the registration thereof.
(b) Indemnification by the Shareholder. Each Shareholder will,
and hereby does, indemnify and hold harmless (in the same manner and to the same
extent as set forth in subdivision (a) of this Section 6) the Company, each
director and officer of the Company, and each other Person, if any, who controls
the Company within the meaning of the Securities Act and Exchange Act, with
respect to any untrue statement or alleged untrue statement of a material fact
in or omission or alleged omission to state a material fact from such
Registration Statement, any Prospectus contained therein, or any amendment or
supplement thereto, if such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by the Shareholder for use in the
preparation of such Registration Statement or amendment thereto or Prospectus or
supplement thereto; provided, however, that the Shareholder shall not be liable
to the extent that the losses, liabilities or expenses arise out of or are based
upon (i) the use by the Company of any Prospectus after such time as the
obligation of the Company to keep the same effective and current has expired or
(ii) the use by the Company of any Prospectus after such time as the Shareholder
has advised the Company in writing that the filing of a post-effective amendment
to the Registration Statement or supplement to the Prospectus is required with
respect to any information contained in such Registration Statement or
Prospectus concerning the Shareholder, except such Registration Statement as so
amended or such Prospectus as so supplemented. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
the Company, or any such director, officer, or controlling person and shall
survive the transfer of such securities by the Shareholder. In no event shall
the liability of any Shareholder hereunder be greater in amount than the dollar
amount of the net proceeds received by such Shareholder from the sale of the
Registrable Securities giving rise to such indemnification obligation.
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(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section 6,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action; provided that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under the preceding subdivisions of this Section 6, except to the extent that
the indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, the
indemnifying party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to the indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. If the
indemnifying party assumes the defense, the indemnifying party shall have the
right to settle such action without the consent of the indemnified party;
provided, however, that the indemnifying party shall be required to obtain such
consent (which consent shall not be unreasonably withheld) if the settlement
includes any admission of wrongdoing on the part of the indemnified party or any
restriction on the indemnified party or its officers or directors. No
indemnifying party shall consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to each indemnified party of an unconditional release
from all liability in respect to such claim or litigation.
(d) Contribution. If for any reason the foregoing indemnity is
unavailable, or is insufficient to hold harmless an indemnified party, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of the expense, loss, damage or liability, (i) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other
(determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission relates to information supplied
by the indemnifying party or the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission), or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, in the proportion as
is appropriate to reflect not only the relative fault of the indemnifying party
and the indemnified party, but also the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other (which
benefits in the case of the Company shall be deemed to include the retirement of
the Debt), as well as any other relevant equitable considerations. No
indemnified party guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
indemnifying party who was not guilty of such fraudulent misrepresentation.
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7. Covenants Relating to Rules 144/145 and 144A. (a) The
Company will prepare and file in a timely manner, information, documents and
reports in compliance with the Exchange Act so as to comply with the Securities
Act and the requirements of such Acts and the rules and regulations thereunder
and will, at its expense, forthwith upon the request of the Shareholder, deliver
to the Shareholder a certificate, signed by the Company's principal financial
officer or his designee, stating (a) the Company's name, address and telephone
number (including area code), (b) the Company's Internal Revenue Service
identification number, (c) the Company's Commission file number, (d) the number
of Series A Preference Shares and Common Shares outstanding as shown by the most
recent report or statement published by the Company, and (e) whether the Company
has filed the reports required to be filed under the Exchange Act for a period
of at least 90 days prior to the date of such certificate and in addition has
filed the most recent annual report required to be filed thereunder. If at any
time the Company is not required to file reports in compliance with either
Section 13 or Section 15(d) of the Exchange Act, the Company at its expense will
forthwith, upon the written request of the Shareholder, make publicly available
such information with respect to the Company as is required by paragraph (c)(2)
of Rule 144 and Rule 144A(d)(4) so long as necessary to permit sales pursuant to
Rule 144 or Rule 144A, as applicable, and it will take such further action as
any Shareholder may reasonably request, all to the extent required from time to
time to enable such Shareholder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 or Rule 144A or Regulation S under the Securities Act,
as such Rules may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC.
(b) In the event a Requesting Party (or Parties) determines to
sell such Registrable Securities without registration under the Securities Act
within the limitation of the exemption provided by Rule 144 or Rule 144A or
Regulation S under the Securities Act, as such rules may be amended from time to
time, or another exemption under the Securities Act, the Company agrees that it
shall use reasonable commercial efforts to cooperate with such Requesting Party
(or Parties), in facilitating such sale, including by entering into such
agreements (including a placement or other agreement) or preparing such
documents, including without limitation a preliminary offering circular, an
offering circular and/or any amendment or supplement thereto, or any supplement
to this Agreement, as such Requesting Party (or Parties) shall reasonably
request. Any such agreement or document shall, where appropriate, contain
provisions substantially similar to those set forth herein, including those
regarding payment of expenses, indemnities and contribution, provision of
information and governing law. The Company further agrees to provide such
representations and warranties to such Requesting Party (or Parties) or its
third-party transferee as may be required to permit sales of Registrable
Securities in a private placement or pursuant to Rule 144A.
(c) So long as any of the Registrable Securities are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Company will, during any period in which it is not subject
to and in compliance with Section 13 or 15(d) of the Exchange Act or it is not
exempt from such reporting requirements pursuant to and in compliance with Rule
12g3-2(b) under the Exchange Act, provide to each
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holder of such restricted securities and to each prospective purchaser (as
designated by such holder) of such restricted securities, upon the request of
such holder or prospective purchaser, any information required to be provided by
Rule 144A(d)(4) under the Securities Act. This covenant is intended to be for
the benefit of the holders, and the prospective purchasers designated by such
holders, from time to time of such restricted securities.
8. Limitation of Registration Rights. If requested by the
underwriters for any Underwritten Offering, the Company and the Shareholder(s)
of Registrable Securities to be included therein shall enter into an
underwriting agreement with such underwriters, such agreement to be reasonably
satisfactory in substance and form to the Company, the holders of a majority of
each class of the Registrable Securities to be included in such Underwritten
Offering and the underwriters, and to contain such terms and conditions as are
generally prevailing in agreements of that type, including, without limitation,
customary provisions regarding comfort letters, opinions of outside legal
counsel and indemnities and provisions for contribution no less favorable to the
recipient thereof than those provided in Section 6 hereof. The Shareholder(s) of
any Registrable Securities to be included in any Underwritten Offering pursuant
hereto shall enter into such an underwriting agreement at the request of the
Company.
9. Notices, Etc. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement shall be
in writing and shall be deemed to have been duly given to any party when
delivered personally (by courier service or otherwise), when delivered by
telecopy if receipt is confirmed by return telecopy, or five days after being
mailed by registered or certified mail, return receipt requested, in each case
to the applicable addresses set forth below:
If to Fiat:
Fiat S.p.A.
Xxx Xxxxx, 000
00000 Xxxxx
Attention: Xxxxxxxxx Xxxxx
Facsimile: 39-011-0063-330
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Facsimile: 212-225-3999
And with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Main Tower
Neue Mainzer Strasse 52
13
60311 Frankfurt am Main
Attention: Xxxxxxx X. Xxxxxxxxxxx, Esq.
Fax: 00 00 0000 0000
If to Sicind:
Sicind S.p.A.
Xxxxx Xxxxxxxx 000X
00000 Xxxxx
Attention: Xxxxxxxxx Xxxxx
Facsimile: 39-011-0063-330
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Facsimile: 212-225-3999
And with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Main Tower
Neue Xxxxxxx Xxxxxxx 00
00000 Xxxxxxxxx xx Xxxx
Attention: Xxxxxxx X. Xxxxxxxxxxx, Esq.
Fax: 00 00 0000 0000
If to the Company:
CNH Global N.V.
Global Management Xxxxxx
000 Xxxxx Xxxxxxxx Xxxx
Xxxx Xxxxxx, Xxxxxxxx 00000 XXX
Attention: General Counsel
Facsimile: x0 000 000 0000
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Attention: Xxxxxxxxxxx X. Xxxx, Esq.
Facsimile: x0 000 000 0000
or to such other address as such party shall have designated
by notice so given to each other party.
10. Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated
except by an instrument in writing signed by the party against whom enforcement
is sought or as expressly provided in Section 18. The failure of any party to
exercise any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance by
any other party with its obligations hereunder, and any custom or practice of
the parties at variance with the terms hereof, shall not constitute a waiver by
such party of its right to exercise any such or other right, power or remedy or
to demand such compliance.
11. Entire Agreement. This Agreement embodies the entire
agreement and understanding between the parties relating to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
12. Severability. If any term of this Agreement or the
application thereof to any party or circumstance shall be held invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such term to the other parties or circumstances shall not be affected thereby
and shall be enforced to the greatest extent permitted by applicable law.
13. Successors and Assigns. The registration rights of any
Shareholder under this Agreement with respect to any Registrable Securities may
be transferred and assigned, provided, however, that no such assignment shall be
binding upon or obligate the Company to any such assignee unless and until (i)
the Company shall have received notice of such assignment as herein provided and
an executed counterpart of this Agreement or other written agreement of the
assignee to be bound by the provisions of this Agreement. Any transfer or
assignment made other than as provided in the first sentence of this Section
shall be null and void. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto, and their respective successors and permitted
assigns.
14. Governing Law. This Agreement and all disputes hereunder
shall be governed by and construed and enforced in accordance with the laws of
the State of New York.
15. Submission to Jurisdiction. Any legal action or proceeding
with respect to this Agreement may be brought in the courts of the State of New
York or of the United States of America for the Southern District of New York,
and, by execution and delivery of this Agreement, the Company and the
Shareholder each hereby accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts and
appellate courts from any thereof. Each of the Company and the
15
Shareholder hereby irrevocably consents to the service of process out of any of
the aforementioned courts in any action or proceeding by the mailing of copies
thereof to the Company or the Shareholder, as the case may be, by registered or
certified mail, postage prepaid, return receipt requested, to such party at its
address specified in Section 9 and the Company has appointed Xxxxxxx Xxxxxx,
Senior Vice President, General Counsel and Secretary of the Company, and Xxxx
Xxxxxxx, Senior Counsel Corporate Governance and Assistant Secretary of the
Company, individually and severally, as agent for service of process of the
Company in connection with the Registration Statement and any and all amendments
(including without limitation, post-effective amendments) and supplements
thereto, with all powers incident to such appointment. The parties hereto hereby
irrevocably waive any objection, including, without limitation, any objection to
the laying of venue or based on the grounds of forum non conveniens, which it
may now or hereafter have to the bringing of any such action or proceeding in
such respective jurisdictions.
16. Name, Captions. The name assigned this Agreement and the
section captions used herein are for convenience of reference only and shall not
affect the interpretation or construction hereof.
17. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one instrument. Each counterpart may consist of
a number of copies each signed by less than all, but together signed by all, the
parties hereto.
18. Termination. This Agreement shall terminate and be of no
further force and effect upon the disposition of all securities covered by each
Registration Statement filed pursuant to the provisions hereof; provided,
however, that, notwithstanding this Section 18, the provisions of Section 6
shall survive the termination of this Agreement.
16
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
FIAT S.P.A.
By: ______________________________
Name:
Title:
SICIND S.P.A.
By: ______________________________
Name:
Title:
CNH GLOBAL N.V.
By: ______________________________
Name: Paolo Monferino
Title: Chief Executive Officer
17
