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EXHIBIT 4.9
COMMON STOCK REGISTRATION RIGHTS AGREEMENT
(this "Agreement") dated as of June 9, 1997, by and
among XXXXXXXX HOLDINGS, INC., a Delaware corporation
(the "Company"), and Credit Suisse First Boston
Corporation ("CSFBC"), Societe Generale Securities
Corporation and UBS Securities LLC (collectively, the
"Initial Purchasers").
The Company is offering for sale (the "Offering") 44,612 Units (the
"Units"), consisting of $44,612,000 principal amount at maturity of the
Company's 12% Senior Discount Notes Due 2009 (the "Notes") and 2,705,896 shares
(the "Shares") of the Company's voting common stock, par value $0.01 per share
(the "Common Stock");
In connection with the Offering, the Initial Purchasers have entered
into a purchase agreement of even date herewith (the "Purchase Agreement")
with the Company to purchase the Units; and
In consideration of the mutual promises contained herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company hereby agrees, for the benefit of the holders of the
Shares (including, without limitation, the Initial Purchasers) (collectively,
the "Holders"), as follows:
SECTION 1. Definitions. As used in this Agreement, the following
terms shall have the meanings set forth below:
"Board" means the Board of Directors of the Company or any committee
thereof duly authorized to act on behalf of such Board of Directors.
"Commission" means the Securities and Exchange Commission, or any
successor agency or body performing substantially similar functions.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Issue Date" means the date on which the Units are initially issued in
connection with the Offering.
"Securities Act" means the Securities Act of 1933, as amended.
"Transfer Restricted Share" means each Share until the earliest of (i)
such time as such Share has been effectively registered under the Securities
Act and disposed of in accordance with the Shelf Registration Statement (as
defined below), (ii) such time as such Share is distributed to the public
pursuant to Rule 144 under the Securities Act or is saleable pursuant to Rule
144(k) under the Securities Act and (iii) such time as such Share can be sold
without registration under the Securities Act.
SECTION 2. Shelf Registration. (a) The Company shall, at its cost
and within 60 days of the Issue Date, file with the Commission a registration
statement (the "Shelf Registration Statement") on an appropriate form under
the Securities Act relating to the offer and sale of the Transfer Restricted
Shares by the Holders thereof from time to time in accordance with the methods
of distribution described in the Shelf Registration Statement and Rule 415 (or
any successor provision) under the Securities Act. The Company shall use its
best efforts to cause the Shelf Registration Statement to be declared effective
on or before 180 days after the Issue Date; provided, however, that no Holder
(other than an Initial Purchaser) shall be entitled to have the Shares held by
it covered by the Shelf Registration Statement unless such Holder agrees in
writing to be bound by all the provisions of this Agreement applicable to such
Holder.
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(b) Subject to subsection (d) below, the Company shall use its best
efforts to keep the Shelf Registration Statement continuously effective in
order to permit the prospectus included therein to be lawfully delivered by the
Holders until the earlier of (i) such time as all the Shares have been sold
thereunder and (ii) such time as none of the Shares are Transfer Restricted
Shares. The Company shall be deemed not to have used its best efforts to keep
the Shelf Registration Statement effective during the requisite period if it
voluntarily takes any action that would result in Holders of Shares covered
thereby not being able to offer and sell such Shares pursuant to the Shelf
Registration Statement during that period, unless such action is permitted to
be taken pursuant to this Agreement or is otherwise required by applicable law.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and the
related prospectus and any amendment or supplement thereto, as of the effective
date of the Shelf Registration Statement, amendment or supplement, (i) to
comply in all material respects with the applicable requirements of the
Securities Act and the rules and regulations of the Commission and (ii) not to
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(d) During any consecutive 365-day period, the Company shall be
entitled to suspend the availability of the Shelf Registration Statement for up
to two 45 consecutive-day periods if the Company's Board determines in the
exercise of its reasonable judgment that there is a valid business purpose for
such suspension and provides notice to the Holders that such determination was
made by the Company's Board; provided, however, that in no event shall the
Company be required to disclose the business purpose for such suspension if the
Company determines in good faith that such business purpose must remain
confidential.
SECTION 3. Registration Procedures. In connection with the
registration of the Shares contemplated by Section 2 hereof (the "Shelf
Registration"), the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior to
the filing thereof with the Commission, a copy of the Shelf Registration
Statement and each amendment thereto and each supplement, if any, to the
prospectus included therein and, in the event that an Initial Purchaser (with
respect to any portion of an unsold allotment from the original offering) is
selling Shares pursuant to the Shelf Registration Statement, shall use its best
efforts to reflect in each such document, when so filed with the Commission,
such comments as such Initial Purchaser may reasonably propose; and (ii)
include the names of the Holders, who propose to sell Shares pursuant to the
Shelf Registration Statement, as selling securityholders.
(b) The Company shall give written notice to the Initial Purchasers
and the Holders (which notice pursuant to clauses (ii)-(v) hereof shall be
accompanied by an instruction to suspend the use of the prospectus until the
requisite changes have been made):
(i) when the Shelf Registration Statement or any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective;
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or
the initiation of any proceedings for that purpose;
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(iv) of the receipt by the Company or its legal counsel of
any notification with respect to the suspension of the qualification
of the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company
to make changes in the Shelf Registration Statement or the prospectus
in order that the Shelf Registration Statement or the prospectus does
not contain an untrue statement of a material fact nor omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the prospectus, in light of the
circumstances under which they were made) not misleading.
(c) The Company shall use its best efforts to obtain the withdrawal
at the earliest possible time of any order suspending the effectiveness of the
Shelf Registration Statement.
(d) The Company shall furnish to each Holder, without charge, at
least one copy of the Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if the
Holder so requests in writing, all exhibits thereto (including those, if any,
incorporated by reference).
(e) The Company shall, for so long as the Shelf Registration
Statement is effective, deliver to each Holder, without charge, as many copies
of the prospectus (including each preliminary prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request, and the Company consents, subject to the provisions of
this Agreement, to the use of the prospectus or any amendment or supplement
thereto by each of the selling Holders in connection with the offering and sale
of the Shares covered by the prospectus or any amendment or supplement thereto,
included in the Shelf Registration Statement.
(f) Prior to any public offering of the Shares pursuant to the Shelf
Registration Statement, the Company shall register or qualify or cooperate with
the Holders and their respective counsel in connection with the registration or
qualification of the Shares for offer and sale under the securities or "blue
sky" laws of such states of the United States as any Holder reasonably requests
in writing and do any and all other acts or things necessary or advisable to
enable the offer and sale in such jurisdictions of the Shares; provided,
however, that the Company shall not be required to (i) qualify generally to do
business in any jurisdiction where it is not then so qualified or (ii) take any
action which would subject it to general service of process or to taxation in
any jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing the Shares to be
sold pursuant to the Shelf Registration Statement free of any restrictive
legends and in such denominations and registered in such names as the Holders
may request a reasonable period of time prior to sales of the Shares pursuant
to the Shelf Registration Statement.
(h) Upon the occurrence of any event contemplated by clauses (ii)
through (v) of subsection (b) above during the period for which the Company is
required to maintain the effectiveness of the Shelf Registration Statement, the
Company shall promptly prepare and file a post-effective amendment to the Shelf
Registration Statement or a supplement to the related prospectus and any other
required document so that, as thereafter delivered to Holders or purchasers of
Shares, the prospectus will not 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, in light of the circumstances under which they
were made, not misleading. If the Company notifies the Initial Purchasers and
the Holders in accordance with clauses (ii) through (v) of subsection (b) above
to suspend the use of the prospectus until the requisite changes to the
prospectus have been made, then the Initial Purchasers and the Holders shall
suspend use of such prospectus, and the period of effectiveness of the Shelf
Registration Statement provided for in
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Section 2(b) hereof shall be extended by the number of days from and including
the date of the giving of such notice to and including the date when the
Initial Purchasers and the Holders shall have received such amended or
supplemented prospectus pursuant to this subsection (h).
(i) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Shelf
Registration, and will make generally available to the Company's
securityholders (or otherwise provide in accordance with Section 11(a) of the
Securities Act) an earnings statement satisfying the provisions of Section
11(a) of the Securities Act, no later than 45 days after the end of a 12-month
period (or 90 days, if such period is a fiscal year) beginning with the first
month of the Company's first fiscal quarter commencing after the effective date
of the Shelf Registration Statement, which statement shall cover such 12-month
period.
(j) The Company may require each Holder to furnish to the Company
such information regarding the Holder and the distribution of the Shares to be
sold by such Holder as the Company may from time to time reasonably request for
inclusion in the Shelf Registration Statement, and the Company may exclude from
such registration the Shares of any Holder that unreasonably fails to furnish
such information within a reasonable time after receiving such request.
(k) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and take
all such other action, if any, as any Holder shall reasonably request in order
to facilitate the disposition of Shares in connection with the Shelf
Registration.
(l) The Company shall (i) make reasonably available for inspection by
the Holders, any underwriter participating in any disposition pursuant to the
Shelf Registration Statement and any attorney, accountant or other agent
retained by the Holders or any such underwriter all relevant financial and
other records, pertinent corporate documents and properties of the Company and
(ii) cause the Company's officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by the Holders
or any such underwriter, attorney, accountant or agent in connection with the
Shelf Registration Statement, in each case, as shall be reasonably necessary to
enable such persons, to conduct a reasonable investigation within the meaning
of Section 11 of the Securities Act; provided, however, that the foregoing
inspection and information gathering shall be coordinated on behalf of the
Initial Purchasers by CSFBC and on behalf of the other parties, by one counsel
designated by and on behalf of such other parties as described in Section 4
hereof.
(m) The Company, if requested by any Holder of Transfer Restricted
Shares, shall cause (i) its counsel to deliver an opinion and updates thereof
relating to the Shares in customary form addressed to such Holders and the
Managing Underwriters (as defined below), if any, thereof and dated, in the
case of the initial opinion, the effective date of such Shelf Registration
Statement (it being agreed that the matters to be covered by such opinion shall
include, without limitation, the due incorporation and good standing of the
Company and its subsidiaries; the qualification of the Company and its
subsidiaries to transact business as foreign corporations; the due
authorization, execution and delivery of the relevant agreement of the type
referred to in subsection (k) above; the due authorization and issuance, and
the full payment and nonassessability, of the Shares and all other outstanding
common stock of the Company; the absence of material legal or governmental
proceedings involving the Company and its subsidiaries; the absence of
governmental approvals required to be obtained in connection with the Shelf
Registration Statement, the offering and sale of the Shares, or any agreement
of the type referred to in subsection (k) above; the compliance as to form of
such Shelf Registration Statement and any documents incorporated by reference
therein with the requirements of the Securities Act; and, as of the date of the
opinion and as of the effective date of the Shelf Registration Statement or
most recent post-effective amendment thereto, as the case may be, the absence
from such Shelf Registration Statement and the prospectus included therein, as
then amended or supplemented,
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and from any documents incorporated by reference therein of an untrue statement
of a material fact or the omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading
(in the case of any such documents, in the light of the circumstances existing
at the time that such documents were filed with the Commission under the
Exchange Act); (ii) their officers to execute and deliver all customary
documents and certificates and updates thereof reasonably requested by any
underwriters of the Shares and (iii) their independent public accountants to
provide to the selling Holders and any underwriter therefor a comfort letter in
customary form and covering matters of the type customarily covered in comfort
letters in connection with primary underwritten offerings, subject to receipt
of appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72.
(n) In the event that any broker-dealer registered under the Exchange
Act shall underwrite any Shares or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution" (within the meaning
of the Conduct Rules of the National Association of Securities Dealers, Inc.
("NASD")) thereof, whether as a Holder or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or otherwise, the Company
shall assist such broker-dealer in complying with the requirements of such
Conduct Rules, including, without limitation, by (i) if Rule 2720 thereto shall
so require, engaging a "qualified independent underwriter" (as defined in Rule
2720) to participate in the preparation of the Shelf Registration Statement, to
exercise usual standards of due diligence in respect thereto and, if any
portion of the offering contemplated by the Shelf Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the sale price of the Shares, (ii) indemnifying any such qualified
independent underwriter to the extent of the indemnification of underwriters
provided in Section 5 hereof and (iii) providing such information to such
broker-dealer as may be required in order for such broker-dealer to comply with
the requirements of the Conduct Rules of the NASD.
(o) The Company shall use its best efforts to take all other steps
necessary to effect the registration of the Shares.
SECTION 4. Registration Expenses. The Company shall bear all fees
and expenses incurred in connection with the performance of its obligations
under Sections 2 and 3 hereof, whether or not the Shelf Registration Statement
is filed or becomes effective, and shall bear or reimburse the Holders for the
reasonable fees and disbursements of one firm of counsel designated by the
Holders of a majority in interest of the Shares to act as counsel for the
Holders in connection therewith, provided that such Holders shall be
responsible for any and all (i) underwriting discounts and commissions and (ii)
other out-of-pocket expenses of such Holders incurred in connection with the
Shelf Registration.
SECTION 5. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Holder and each person, if any, who controls such Holder
within the meaning of the Securities Act or the Exchange Act (each Holder and
such controlling persons are referred to collectively as the "Indemnified
Parties") from and against any losses, claims, damages or liabilities, joint or
several, or any actions in respect thereof (including, but not limited to, any
losses, claims, damages, liabilities or actions relating to purchases and sales
of the Shares) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to the Shelf Registration Statement,
or arise out of, or are based upon, the 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 shall reimburse, as incurred, the
Indemnified Parties for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that (i) the Company
shall not be liable in any such case to
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the extent that such loss, claim, damage or liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in the Shelf Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus relating to
the Shelf Registration Statement in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the Company by
or on behalf of such Holder specifically for inclusion therein and (ii) with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus relating to the Shelf Registration
Statement, the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Holder from whom the person asserting any such
losses, claims, damages or liabilities purchased the Shares concerned, to the
extent that a prospectus relating to such Shares was required to be delivered
by such Holder under the Securities Act in connection with such purchase and
any such loss, claim, damage or liability of such Holder results from the fact
that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Shares to such person, a copy of the final
prospectus if the Company had previously furnished copies thereof to such
Holder; provided further, however, that this indemnity agreement will be in
addition to any liability which the Company may otherwise have to such
Indemnified Party. The Company shall also indemnify underwriters, their
officers and directors and each person who controls such underwriters within
the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act to the same extent as provided above with respect to the
indemnification of the Holders if requested by such Holders.
(b) Each Holder, severally and not jointly, will indemnify and hold
harmless the Company and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act from and against any
losses, claims, damages or liabilities or any actions in respect thereof, to
which the Company or any such controlling person may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to the Shelf Registration Statement,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
omission or alleged untrue statement or omission was made in reliance upon and
in conformity with written information pertaining to such Holder and furnished
to the Company by or on behalf of such Holder specifically for inclusion
therein; and, subject to the limitation set forth immediately preceding this
clause, shall reimburse, as incurred, the Company for any legal or other
expenses reasonably incurred by the Company or any such controlling person in
connection with investigating or defending any loss, claim, damage, liability
or action in respect thereof. This indemnity agreement will be in addition to
any liability which such Holder may otherwise have to the Company or any of
their controlling persons.
(c) Promptly after receipt by an indemnified party under this Section
5 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 5,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in subsections (a) or (b) above. In the
case any such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (in
which case, such indemnified party shall be entitled, at its option, to engage
at the indemnifying party's cost, separate counsel reasonably satisfactory to
the indemnifying party to act on behalf of all indemnified parties in
connection with such action), and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to
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such indemnified party under this Section 5 for any legal or other expenses,
other than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action 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 any
claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsections (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the indemnifying party or parties on
the one hand and the indemnified party on the other from the registration of
the Shares pursuant to the Shelf Registration Statement, or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof) as well
as any other relevant equitable considerations. The relative fault of the
parties 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 on the one hand or such Holder or such other indemnified party, as
the case may be, on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding any other provision of this subsection (d), the Holders shall
not be required to contribute any amount in excess of the amount by which the
net proceeds received by such Holders from the sale of the Shares pursuant to
the Shelf Registration Statement exceeds the amount of damages which such
Holders have 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. For purposes of this subsection
(d), each person, if any, who controls such indemnified party within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as such indemnified party and each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act shall
have the same rights to contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the sale
of the Shares pursuant to a Shelf Registration Statement and shall remain in
full force and effect, regardless of any termination or cancelation of this
Agreement or any investigation made by or on behalf of any indemnified party.
SECTION 7. Rules 144 and 144A. The Company shall use its best
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the request of any Holder of
Transfer Restricted Shares, make publicly available other information so long
as necessary to permit sales of its securities pursuant to Rules 144 and 144A.
The Company covenants that it will take such further action as any Holder of
Transfer Restricted Shares may reasonably request, all to the extent required
from time to time to enable such Holder to sell Transfer Restricted Shares
without registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including the requirements of
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Rule 144A(d)(4)). The Company will provide a copy of this Agreement to
prospective purchasers of Shares identified to the Company by the Initial
Purchasers upon request. Upon the request of any Holder of Transfer Restricted
Shares, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements. Notwithstanding the foregoing,
nothing in this Section 7 shall be deemed to require the Company to register
any of its securities pursuant to the Exchange Act.
SECTION 8. Underwritten Registrations. If any of the Transfer
Restricted Shares covered by any Shelf Registration Statement are to be sold in
an underwritten offering, the investment banker or investment bankers and
manager or managers that will administer the offering (the "Managing
Underwriters") will be selected by the Holders of a majority in interest of
such Transfer Restricted Shares to be included in such offering, provided, that
the Managing Underwriters must be reasonably satisfactory to the Issuers.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted Shares
on the basis reasonably provided in any underwriting arrangements approved by
the persons entitled hereunder to approve such arrangements and (ii) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
SECTION 9. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and any waiver or consent to departures
from the provisions hereof may not be given, except by the Company and the
written consent of the Holders of a majority in interest of the Shares affected
by such amendment, modification, supplement, waiver or consent.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class
mail, facsimile transmission, or air courier which guarantees overnight
delivery:
(1) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this
subsection (b).
(2) if to the Initial Purchasers, at the following address:
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Transactions Advisory Group
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxxx
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(3) if to the Company, at its address as follows:
Xxxxxxxx Holdings, Inc.
Xxxxxxxxxxx Corporate Center
000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
with a copy to:
Hicks, Muse, Xxxx & Xxxxx Incorporated
1325 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxx
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx, Xx.
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxx
Xxxx Xxxxxxx, Esq.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when
receipt is acknowledged by recipient's facsimile machine operator, if sent by
facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(c) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into,
any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with the provisions
hereof.
(d) Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
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(e) 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.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
(h) Severability. If 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.
(i) Shares Held by the Company. Whenever the consent or approval of
Holders of a specified percentage of Shares is required hereunder, the Shares
held by the Company or its affiliates (other than subsequent Holders if such
Holders are deemed to be affiliates solely by reason of their holdings of such
Shares) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
11
11
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the several Initial Purchasers and the Company in accordance
with its terms.
Very truly yours,
XXXXXXXX HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXX
------------------------------
Name: Xxxxxx X. Xxxxx
Title:
The foregoing Common Stock Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
SOCIETE GENERALE SECURITIES CORPORATION
UBS SECURITIES LLC
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:/s/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
Title:
