Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of June 1, 1999 by and among The Interpublic Group of Companies, Inc., a
Delaware corporation (the "Company"), Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxx, Sachs & Co. and Xxxxxxx Xxxxx Xxxxxx Inc. (the "Initial Purchasers")
pursuant to the Purchase Agreement, dated as of May 26, 1999 (the "Purchase
Agreement"), between the Company and the Initial Purchasers. In order to induce
the Initial Purchasers to enter into the Purchase Agreement, the Company has
agreed to provide the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
The Company agrees with the Initial Purchasers, (i) for their benefit as
Initial Purchasers and (ii) for the benefit of the registered holders from time
to time of the Convertible Notes (including the Initial Purchasers) and the
holders from time to time of the Underlying Common Stock issued upon conversion
or exchange of the Convertible Notes (each of the foregoing a "Holder" and
together the "Holders"), as follows:
Section 1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following terms shall have the following meanings:
Affiliate: "Affiliate" means, with respect to any specified person, (i) any
other person directly or indirectly controlling or controlled by, or under
direct or direct common control with, such specified person or (ii) any officer
or director of such other person. For purposes of this definition, the term
"control" (including the terms "controlling," "controlled by" and "under common
control with") of a person means the possession, direct or indirect, of the
power (whether or not exercised) to direct or cause the direction of the
management and policies of a person, whether through the ownership of voting
securities, by contract, or otherwise.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday that is
not a day on which banking institutions in The City of New York are authorized
or obligated by law or executive order to close.
Convertible Notes: The 1.87% Convertible Subordinated Notes due 2006 of the
Company being issued and sold pursuant to the Purchase Agreement and the
Indenture.
Common Stock: The shares of common stock, $0.10 par value per share, of the
Company and any other shares of common stock as may constitute "Common Stock"
for purposes of the Indenture, including the Underlying Common Stock.
Conversion Rate: The initial Conversion Rate is 8.808 shares of Common
Stock per $1,000 principal amount at maturity of Convertible Notes, subject to
adjustment upon the occurrence of certain events pursuant to the terms of the
Indenture.
Damages Accrual Period: See Section 2(e) hereof.
Damages Payment Date: Each of the semi-annual interest payment dates
provided in the Indenture.
Deferral Period: See Section 2(d)(iii) hereof.
Effectiveness Period: The period commencing with the date hereof and ending
on the date that all Registrable Securities have ceased to be Registrable
Securities.
Event: See Section 2(e) hereof.
Event Date: See Section 2(e) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Filing Date: See Section 2(a) hereof.
Holder: See the second paragraph of this Agreement.
Indenture: The Indenture, dated as of June 1, 1999, between the Company,
and The Bank of New York as trustee, pursuant to which the Convertible Notes are
being issued, as amended or supplemented from time to time in accordance with
the terms hereof.
Initial Purchasers: Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx, Sachs & Co.
and Xxxxxxx Xxxxx Xxxxxx Inc.
Initial Shelf Registration: See Section 2(a) hereof.
Liquidated Damages Amount: See Section 2(e) hereof.
Losses: See Section 6 hereof.
Managing Underwriters: The investment banking firm or firms that shall
manage or co-manage an Underwritten Offering.
Notice Holder: See Section 2(d)(i) hereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
Purchase Agreement: See the first paragraph of this Agreement.
Record Holder: (i) With respect to any Damages Payment Date relating to any
Convertible Note as to which any such Liquidated Damages Amount has accrued, the
registered Holder of such Convertible Note on the record date with respect to
the interest payment date under the Indenture on which such Damages Payment Date
shall occur and (ii) with respect to any Damages Payment Date relating to any
Common Stock as to which any such Liquidated Damages Amount has accrued, the
registered Holder of such Common Stock 15 days prior to the next succeeding
Damages Payment Date.
Registrable Securities: (A) The Common Stock of the Company into which the
Convertible Notes are convertible or converted, whether or not such Convertible
Notes have been converted, and at all times subsequent thereto, and any Common
Stock issued with respect thereto upon any stock dividend, split or similar
event until, in the case of any such Common Stock, (i) it is effectively
registered under the Securities Act and resold in accordance with the
Registration Statement covering it, (ii) it is saleable by the Holder thereof
pursuant to Rule 144(k) or (iii) it is sold to the public pursuant to Rule 144,
and, as a result of the event or circumstance described in any of the foregoing
clauses (i) through (iii), the legends with respect to transfer restrictions
required under the Indenture (other than any such legends required solely as the
consequence of the fact that such Common Stock (or the Convertible Notes, upon
the conversion of which, such Common Stock was issued or is issuable) is owned
by, or was previously owned by, the Company or an Affiliate of the Company) are
removed or removable in accordance with the terms of the Indenture; (B) the
Convertible Notes, until, in the case of any such Convertible Note, (i) it is
converted into shares of Common Stock in accordance with the terms of the
Indenture, (ii) it is effectively registered under the Securities Act and resold
in accordance with the Registration Statement covering it, (iii) it is saleable
by the Holder thereof pursuant to Rule 144(k) or (iv) it is sold to the public
pursuant to Rule 144, and, as a result of the event or circumstance described in
any of the foregoing clauses (ii) through (iv), the legends with respect to
transfer restrictions required under the Indenture (other than any such legends
required solely as the consequence of the fact that such Convertible Note is
owned by, or was previously owned by, the Company or an Affiliate of the
Company) are removed or removable in accordance with the terms of the Indenture.
Registration Expenses: See Section 5 hereof.
Registration Statement: Any registration statement of the Company which
covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Rule 144: Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the
SEC.
Rule 144A: Rule 144A under the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the
SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the SEC thereunder.
Selling Period: See Section 2(d)(i) hereof.
Shelf Registration: See Section 2(a) hereof.
Special Counsel: Xxxxx Xxxx & Xxxxxxxx or such other successor counsel as
shall be specified by the Holders of a majority of the Registrable Securities,
the fees and expenses of which will be paid by the Company pursuant to Section 5
hereof.
Subsequent Shelf Registration: See Section 2(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The Bank of New York, the Trustee under the Indenture.
Underlying Common Stock: The Common Stock of the Company into which the
Convertible Notes are convertible or into which the Exchangeable Notes are
exchangeable.
Underwritten Registration or Underwritten Offering: A registration in which
securities of the Company are sold to an underwriter for reoffering to the
public.
Section 2. Shelf Registration. (a) The Company shall prepare and file with
the SEC, as soon as practicable but in any event within ninety (90) days after
the latest date of original issuance of the Convertible Notes (the "Filing
Date"), a Registration Statement for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 of the Securities Act (a "Shelf
Registration") registering the resale from time to time by Holders thereof of
all of the Registrable Securities upon and following conversion or the exchange
of the Convertible Notes (the "Initial Shelf Registration"). The Initial Shelf
Registration shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Securities for resale by such Holders in the
manner or manners designated by them (including, without limitation, one or more
Underwritten Offerings). The Company shall use its reasonable efforts to cause
the Initial Shelf Registration to become effective under the Securities Act as
promptly as is practicable and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the earlier of the
expiration of the Effectiveness Period or the date a Subsequent Shelf
Registration Statement has been declared effective under the Securities Act.
(b) If the Initial Shelf Registration or any Subsequent Shelf Registration,
as defined below, ceases to be effective for any reason at any time during the
Effectiveness Period (other than because all Registrable Securities registered
thereunder shall have been sold or shall have ceased to be Registrable
Securities), the Company shall use its best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any event
shall within thirty (30) days of such cessation of effectiveness amend the Shelf
Registration in a manner reasonably expected to obtain the withdrawal of the
order suspending the effectiveness thereof, or file an additional Shelf
Registration covering all of the Registrable Securities (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the Company shall
use its best efforts to cause the Subsequent Shelf Registration to become
effective as promptly as is practicable after such filing and to keep such
Registration Statement continuously effective until the end of the Effectiveness
Period.
(c) The Company shall supplement and amend the Shelf Registration if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration, if required
by the Securities Act, or if reasonably requested by the Initial Purchasers or
by the Trustee on behalf of the Holders of the Registrable Securities covered by
such Registration Statement or by any Managing Underwriter of such Registrable
Securities.
(d) Each Holder of Registrable Securities agrees that if Holder wishes to
sell its Registrable Securities pursuant to a Shelf Registration and related
Prospectus, it will do so only in accordance with this Section 2(d). Each Holder
of Registrable Securities agrees to give written notice to the Company at least
three (3) Business Days prior to any intended distribution of Registrable
Securities under the Shelf Registration, which notice shall specify the date on
which such Holder intends to begin such distribution and any information with
respect to such Holder and the intended distribution of Registrable Securities
by such Holder required to amend or supplement the Registration Statement with
respect to such intended distribution of Registrable Securities by such Holder.
As promptly as is practicable after the date such notice is provided, and in any
event within two (2) Business Days after such date, the Company shall either:
(i) (A) prepare and file with the Commission a post-effective
amendment to the Shelf Registration or a supplement to the related
Prospectus or a supplement or amendment to any document incorporated
therein by reference or file any other required document so that such
Registration Statement 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 not misleading, and so that, as
thereafter delivered to purchasers of the Registrable Securities being sold
thereunder, such 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; provide the
Holders of the Registrable Securities who gave such notice copies of any
documents filed pursuant to Section 2(d)(i)(A); and inform each such Holder
that the Company has complied with its obligations in Section 2(d)(i)(A)
(or that, if the Company has filed a post-effective amendment to the Shelf
Registration which has not yet been declared effective, the Company will
notify each such Holder to that effect, will use its best efforts to secure
the effectiveness of such post-effective amendment and will immediately
notify each such Holder pursuant to Section 2(d)(i)(A) hereof when the
amendment has become effective); each Holder who has given notice of
intention to distribute such Holder's Registrable Securities in accordance
with Section 2(d) hereof (a "Notice Holder") will sell all or any of such
Registrable Securities pursuant to the Shelf Registration and related
Prospectus only during the 45-day period commencing with the date on which
the Company gives notice, pursuant to Section 2(d)(i)(A), that the
Registration Statement and Prospectus may be used for such purpose (such
45-day period is referred to as a "Selling Period"); the Notice Holders
will not sell any Restricted Securities pursuant to such Registration
Statement or Prospectus after such Selling Period without giving a new
notice of intention to sell pursuant to Section 2(d) hereof and receiving a
further notice from the Company pursuant to Section 2(d)(i)(A) hereof; or
(ii) in the event (A) of the happening of any event of the kind
described in Section 2(e)(i), 2(e)(ii), 2(e)(iii) or 2(e)(iv) hereof or (B)
that, in the judgment of the Company, it is advisable to suspend use of the
Prospectus for a discrete period of time due to pending material corporate
developments or similar material events that have not yet been publicly
disclosed and as to which the Company believes public disclosure will be
prejudicial to the Company, the Company shall deliver a certificate in
writing, signed by its Chief Executive Officer, Chief Financial Officer or
General Counsel, to the Notice Holders, the Special Counsel and the
Managing Underwriters, if any, to the effect of the foregoing and, upon
receipt of such certificate, each such Notice Holder's Selling Period will
not commence until such Notice Holder's receipt of copies of the
supplemented or amended Prospectus provided for in Section 2(d)(i)(A)
hereof, or until it is advised in writing by the Company that the
Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by
reference in such Prospectus. The Company will use its best efforts to
ensure that the use of the Prospectus may be resumed, and the Selling
Period will commence, as promptly as is practicable and, in the case of a
pending development or event referred to in Section 2(d)(ii)(B) hereof, as
soon as the earlier of (x) public disclosure of such pending material
corporate development or similar material event or (y) in the judgment of
the Company, public disclosure of such material corporate development or
similar material event would not be prejudicial to the Company.
Notwithstanding the foregoing, the Company shall not under any
circumstances be entitled to exercise its right under this Section 2(d)(ii)
to defer the commencement of a Selling Period more than one (1) time in any
three (3) month period or three (3) times in any twelve (12) month period,
and the period in which a Selling Period is suspended shall not exceed
thirty (30) days. In no event shall the Company be permitted to extend the
period during which such Selling Period is deferred from and after the date
a Notice Holder provides notice to the Company in accordance with this
Section 2(d) of its intention to distribute Registrable Securities (a
"Deferral Period") beyond such thirty (30) day period.
(e) The parties hereto agree that the Holders of Registrable Securities
will suffer damages, and that it would not be feasible to ascertain the extent
of such damages with precision, if (i) the Initial Shelf Registration has not
been filed on or prior to the Filing Date, (ii) prior to the end of the
Effectiveness Period, the SEC shall have issued a stop order suspending the
effectiveness of the Shelf Registration or proceedings have been initiated with
respect to the Shelf Registration under Section 8(d) or 8(e) of the Securities
Act, (iii) the aggregate number of days in any one Deferral Period exceeds the
periods permitted pursuant to Section 2(d)(ii) hereof or (iv) the number of
Deferral Periods exceeds the number permitted pursuant to Section 2(d)(ii)
hereof (each of the events of a type described in any of the foregoing clauses
(i) through (iv) is individually referred to herein as an "Event", and the
Filing Date in the case of clause (i), the date on which the effectiveness of
the Shelf Registration has been suspended or proceedings with respect to the
Shelf Registration under Section 8(d) or 8(e) of the Securities Act have been
commenced in the case of clause (ii), the date on which the duration of a
Deferral Period exceeds the periods permitted by Section 2(d)(ii) hereof in the
case of clause (iii), and the date of the commencement of a Deferral Period that
causes the limit on the number of Deferral Periods under Section 2(d)(ii) hereof
to be exceeded in the case of clause (iv), being referred to herein as an "Event
Date"). Events shall be deemed to continue until the "Event Termination" which
shall be the following dates with respect to the respective types of Events: the
date the Initial Registration Statement is filed in the case of an Event of the
type described in clause (i), the date that all stop orders suspending
effectiveness of the Shelf Registration have been removed and the proceedings
initiated with respect to the Shelf Registration under Section 8(d) or (e) of
the Securities Act have terminated, as the case may be, in the case of Events of
the types described in clause (ii), termination of the Deferral Period which
caused the periods permitted by Section 2(d)(ii) to be exceeded in the case of
the commencement of an Event of the type described in clause (iii), and
termination of the Deferral Period the commencement of which caused the number
of Deferral Periods permitted by Section 2(d)(ii) to be exceeded in the case of
Events of the type described in clause (iv).
Accordingly, upon the occurrence of any Event and until such time as there
are no Events which have occurred and are continuing (a "Damages Accrual
Period"), commencing on the Event Date on which such Damages Accrual Period
began, the Company agrees to pay, as liquidated damages, and not as a penalty,
an additional amount (the "Liquidated Damages Amount"):(A) (i) to each Holder of
a Convertible Note that is a Notice Holder, accruing at a rate equal to one-half
of one percent per annum (50 basis points) on an amount equal to the sum of (x)
the Issue Price (as defined in the Indenture) of the Convertible Notes held by
such Notice Holders and (y) the accrued Original Issue Discount (as defined in
the Indenture) on such Convertible Notes and (ii) to each Holder of an
Underlying Common Stock that is a Notice Holder, accruing at a rate equal to
one-half of one percent per annum (50 basis points) calculated on an amount
equal to the product of (x) the then accreted value of $1,000 principal amount
at maturity of Convertible Note divided by the then applicable Conversion Rate,
times (y) the number of shares of Common Stock held by such Holder; and (B) if
the Damages Accrual Period continues for in excess of thirty (30) days from the
Event Date, from and after the end of such thirty (30) day period until such
time as there are no Events which have occurred and are continuing, (i) to each
Holder of a Convertible Note (whether or not a Notice Holder), accruing at a
rate equal to one-half of one percent per annum (50 basis points) on an amount
equal to the sum of (x) the Issue Price of the Convertible Notes held by such
Holder and (y) the accrued Original Issue Discount on such Convertible Notes and
(ii) to each Holder of Underlying Common Stock (whether or not a Notice Holder),
accruing at a rate equal to one-half of one percent per annum (50 basis points)
calculated on an amount equal to the product of (x) the then accreted value of
$1,000 principal amount at maturity of Convertible Notes divided by the then
applicable Conversion Rate times (y) the number of shares of Common Stock held
by such Holder. Notwithstanding anything else in this Section 2(e), no
Liquidated Damages Amounts shall accrue under clause (A) for the preceding
sentence during any period for which Liquidated Damages Amounts accrue under
clause (B) of the foregoing sentence or as to any Registrable Securities from
and after the earlier of (x) the date such securities are no longer Registrable
Securities, and (y) expiration of the Effectiveness Period. The rate of accrual
of the Liquidated Damages Amount with respect to any period shall not exceed the
rate provided for in this paragraph notwithstanding the occurrence of multiple
concurrent Events.
The Company shall pay the liquidated damages due on any Convertible Notes
or Underlying Common Stock by depositing with the Trustee under the Indenture,
in trust for the benefit of the Notice Holders or the Holders of Convertible
Notes or Underlying Common Stock, as the case may be, entitled thereto, at least
one (1) business day prior to the applicable Damages Payment Date, sums
sufficient to pay the liquidated damages accrued or accruing from and including
the last preceding Damages Payment Date to, but not including, such Damages
Payment Date. The Liquidated Damages Amount shall be paid by the Company to the
Record Holders on each Damages Payment Date by wire transfer of immediately
available funds to the accounts specified by them or by mailing checks to their
registered addresses as they appear in the register, in the case of the
Convertible Notes, if no such accounts have been specified on or before the
Damages Payment Date; provided, however, that any Liquidated Damages Amount
accrued with respect to any Convertible Note or portion thereof called for
redemption on a redemption date, redeemed or repurchased in connection with a
Fundamental Change (as defined in the Indenture) on a repurchase date, or
converted into Common Stock on a conversion date prior to the Damages Payment
Date, shall, in any such event, be paid instead to the Holder who submitted such
Convertible Note or portion thereof for redemption, repurchase or conversion on
the applicable redemption date, repurchase date or conversion date, as the case
may be, on such date (or promptly following the conversion date, in the case of
conversion of a Convertible Note). The Trustee shall be entitled, on behalf of
the Holders of Convertible Notes, Holders of Common Stock and Notice Holders, to
seek any available remedy for the enforcement of this Agreement, including for
the payment of such Liquidated Damages Amount. Notwithstanding the foregoing,
the parties agree that the sole damages payable for a violation of the terms of
this Agreement with respect to which a Liquidated Damages Amount is expressly
provided shall be such Liquidated Damages Amount. Nothing shall preclude a
Notice Holder or Holder of Registrable Securities from pursuing or obtaining
specific performance or other equitable relief with respect to this Agreement,
in addition to the payment of Liquidated Damages.
All of the Company's obligations set forth in this Section 2(e) which are
outstanding with respect to any Registrable Securities at the time such security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to such security have been satisfied in full
(notwithstanding termination of the Agreement pursuant to Section 9(o)).
The parties hereto agree that the liquidated damages provided for in this
Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities (other than the Initial
Purchasers) by reason of the failure of the Shelf Registration to be filed or
declared effective or because the Shelf Registration is unavailable (absolutely
or as a practical matter) for effecting resales of Registrable Securities, as
the case may be, in accordance with the provisions hereof.
Section 3. Registration Procedures. In connection with the Company's
registration obligations under Section 2 hereof, the Company shall effect such
registrations to permit the sale of the Registrable Securities in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
the Company shall as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or Registration
Statements on any appropriate form under the Securities Act available for the
sale of the Registrable Securities by the Holders thereof in accordance with the
intended method or methods of distribution thereof, and use its reasonable
efforts to cause each such Registration Statement to become effective and remain
effective as provided herein; provided, that before filing any such Registration
Statement or Prospectus or any amendments or supplements thereto (other than
documents that would be incorporated or deemed to be incorporated therein by
reference and that the Company is required by applicable securities laws or
stock exchange requirements to file) the Company shall furnish to the Initial
Purchasers, the Special Counsel and the Managing Underwriters of such offering,
if any, copies of all such documents proposed to be filed, which documents will
be subject to the review of the Initial Purchasers, the Special Counsel and such
Managing Underwriters, and the Company shall not file any such Registration
Statement or amendment thereto or any Prospectus or any supplement thereto
(other than such documents which, upon filing, would be incorporated or deemed
to be incorporated by reference therein and that the Company is required by
applicable securities laws or stock exchange requirements to file) to which the
Holders of a majority of the Registrable Securities covered by such Registration
Statement, the Initial Purchasers or the Special Counsel shall reasonably object
in writing within two (2) full Business Days.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period
specified in Section 2; cause the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) under the Securities Act; and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement during the applicable
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement as so amended or such
Prospectus as so supplemented.
(c) Notify the selling Holders, the Initial Purchasers, the Special Counsel
and the Managing Underwriters, if any, promptly, and (if requested by any such
person) confirm such notice in writing, (i) when a Prospectus, any Prospectus
supplement, a Registration Statement or a post-effective amendment to a
Registration Statement has been filed with the SEC, and, with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective, (ii) of any request by the SEC or any other federal or state
governmental authority for amendments or supplements to a Registration Statement
or related Prospectus or for additional information, (iii) of the issuance by
the SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation or
threatening of any proceedings for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) except during any Deferral Period, of the existence of any fact or
happening of any event which makes any statement of a material fact in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue or which would require the
making of any changes in the Registration Statement or Prospectus in order that,
in the case of the Registration Statement, it will not contain any 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
that in the case of the Prospectus, it will not contain any untrue statement of
a material fact or omit to state any material fact or omit to state any 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,
and (vi) of the Company's determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use its best efforts to obtain the withdrawal of any order suspending
the effectiveness of a Registration Statement, or the lifting of any suspension
of the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest possible moment.
(e) If reasonably requested by the Initial Purchasers, the Special Counsel,
the Managing Underwriters, if any, or the Holders of a majority of the
Registrable Securities being sold, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment to a Registration Statement such
information as the Initial Purchasers, the Special Counsel, the Managing
Underwriters, if any, or such Holders, in connection with any offering of
Registrable Securities, agree should be included therein as required by
applicable law, and (ii) make all required filings of such Prospectus supplement
or such post-effective amendment as promptly as is practicable after the Company
has received notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment; provided, that the Company shall not be
required to take any actions under this Section 3(e) that are not, in the
reasonable opinion of counsel for the Company, in compliance with applicable
law.
(f) Furnish to each selling Holder, the Special Counsel and the Initial
Purchasers, and each Managing Underwriter, if any, without charge, at least one
conformed copy of the Registration Statement or Statements and any amendment
thereto, including financial statements but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits
(unless requested in writing by such Holder, counsel, Initial Purchasers or
underwriter).
(g) Deliver to each selling Holder, the Special Counsel and the Initial
Purchasers and each Managing Underwriter, if any, in connection with any
offering of Registrable Securities, without charge, as many copies of the
Prospectus or Prospectuses relating to such Registrable Securities (including
each preliminary prospectus) and any amendment or supplement thereto as such
persons may reasonably request; and the Company hereby consents to the use of
such Prospectus or each amendment or supplement thereto by each of the selling
Holders of Registrable Securities and the Underwriters, if any, in connection
with any offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to register or
qualify or cooperate with the selling Holders, the Managing Underwriters, if
any, and the Special Counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or Blue Sky laws
of such jurisdictions within the United States as any selling Holder or Managing
Underwriter reasonably requests in writing; keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided, that the Company will 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 that would subject it to general service of
process in suits or to taxation in any such jurisdiction where it is not then so
subject.
(i) Cause the Registrable Securities covered by the applicable Registration
Statement to be registered with or approved by such other governmental agencies
or authorities within the United States, except as may be required solely as a
consequence of the nature of such selling Holder, in which case the Company will
cooperate in all reasonable respects with the filing of such Registration
Statement and the granting of such approvals, as may be necessary to enable the
selling Holder or Holders thereof or the Managing Underwriters, if any, to
consummate the disposition of such Registrable Securities.
(j) During any Selling Period (other than during a Deferral Period),
immediately upon the existence of any fact or the occurrence of any event as a
result of which a Registration Statement shall contain any 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, or if a Prospectus
shall contain any 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, in the light of the circumstances under which they were made, not
misleading, promptly prepare and file a post-effective amendment to each
Registration Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required or permissible
document (such as a Current Report on Form 8-K) that would be incorporated by
reference into the Registration Statement so that the Registration Statement
shall not contain any 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 so that the Prospectus will not contain any untrue
statement of a material fact or omit to state any material fact or omit to state
any 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, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Registration Statement, use its best efforts to
cause it to become effective as promptly as is practicable.
(k) Enter into such agreements (including, in the event of an Underwritten
Offering, an underwriting agreement in form, scope and substance as is customary
in Underwritten Offerings) and take all such other actions in connection
therewith (including, in the event of an underwritten offering, those reasonably
requested by the Managing Underwriters, if any, or the Holders of a majority of
the Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection, whether or
not an underwriting agreement is entered into, and if the registration is an
underwritten registration, (i) make such representations and warranties, subject
to the Company's ability to do so, to the Holders of such Registrable Securities
and the underwriters with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents incorporated
by reference or deemed incorporated by reference, if any, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested; (ii) use its
reasonable efforts to obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters, if any, Special Counsel
and the Holders of a majority of the Registrable Securities being sold)
addressed to each of the underwriters covering the matters customarily covered
in opinions requested in underwritten offerings and such other matters as may be
reasonably requested by such Special Counsel and Managing Underwriters; (iii)
use its reasonable efforts to obtain "cold comfort" letters and updates thereof
from the independent certified public accountants of the Company (and, if
necessary, any other certified public accountants of any subsidiary of the
Company or any business acquired or to be acquired by the Company for which
financial statements and financial data is, or is required to be, included in
the Registration Statement), addressed to each of the Managing Underwriters, if
any, such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with Underwritten
Offerings; and (iv) deliver such documents and certificates as may be reasonably
requested by the Holders of a majority of the Registrable Securities being sold,
the Special Counsel and the Managing Underwriters, if any, to evidence the
continued validity of the representations and warranties of the Company and its
subsidiaries made pursuant to clause (i) above and to evidence compliance with
any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company. The above shall be done at each closing
under such underwriting or similar agreement as and to the extent required
thereunder.
(l) If requested in connection with a disposition of Registrable Securities
pursuant to a Registration Statement, make available for inspection by a
representative of the Holders of Registrable Securities being sold, any Managing
Underwriter participating in any disposition of Registrable Securities, if any,
and any attorney or accountant retained by such selling Holders or underwriter,
financial and other records, pertinent corporate documents and properties of the
Company and its subsidiaries, and cause the executive officers, directors and
employees of the Company and its subsidiaries to supply all information
reasonably requested by any such representative, Managing Underwriter, attorney
or accountant in connection with such disposition; subject to reasonable
assurances by each such person that such information will only be used in
connection with matter relating to such Registration Statement.
(m) Comply with all applicable rules and regulations of the SEC and make
generally available to its securityholders earning statements (which need not be
audited) satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the Securities Act)
no later than 45 days after the end of any 12-month period (or 90 days after the
end of any 12-month period if such period is a fiscal year) (i) commencing at
the end of any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts underwritten offering, and
(ii) if not sold to underwriters in such an offering, commencing on the first
day of the first fiscal quarter of the Company commencing after the effective
date of a Registration Statement, which statements shall cover said 12-month
periods.
(n) Cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations and registered in
such names as the Holders may request.
(o) Provide a CUSIP number for all Registrable Securities not later than
the effective date of the Registration Statement and provide the Trustee under
the Indenture and the transfer agent for the Common Stock with printed
certificates for the Registrable Securities which are in a form eligible for
deposit with the Depositary Trust Company.
(p) Cause all Registrable Securities covered by the Registration Statement
to be listed on each securities exchange or quotation system on which the
Company's Common Stock is then listed no later than the date the Registration
Statement is declared effective and, in connection therewith, to the extent
applicable, to make such filings under the Exchange Act (e.g., the filing of a
Registration Statement on Form 8-A) and to have such filings declared effective
thereunder.
(q) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.
Section 4. Holder's Obligations. Each Holder agrees, by acquisition of the
Convertible Notes and Registrable Securities, that no Holder of Registrable
Securities shall be entitled to sell any of such Registrable Securities pursuant
to a Registration Statement or to receive a Prospectus relating thereto, unless
such Holder has furnished the Company with the notice required pursuant to
Section 2(d) hereof (including the information required to accompany such
notice) and, promptly after the Company's request, such other information
regarding such Holder and the distribution of such Registrable Securities as the
Company may from time to time reasonably request. The Company may exclude from
such registration the Registrable Securities of any Holder who does not furnish
such information provided above for so long as such information is not so
furnished. Each Holder of Registrable Securities as to which any Registration
Statement is being effected agrees promptly to furnish to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not misleading. Any sale of any
Registrable Securities by any Holder shall constitute a representation and
warranty by such Holder that the information relating to such Holder and its
plan of distribution is as set forth in the Prospectus delivered by such Holder
in connection with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact relating to
such Holder or its plan of distribution and that such Prospectus does not as of
the time of such sale omit to state any material fact relating to such Holder or
its plan of distribution necessary to make the statements in such Prospectus, in
light of the circumstances under which they were made, not misleading.
Section 5. Registration Expenses. All fees and expenses incident to the
Company's performance of or compliance with this Agreement shall be borne by the
Company whether or not any of the Registration Statements become effective. Such
fees and expenses shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and expenses (x) with respect
to filings required to be made with the National Association of Securities
Dealers, Inc. and (y) of compliance with federal securities or Blue Sky laws
(including, without limitation, fees and disbursements of Special Counsel in
connection with Blue Sky qualifications of the Registrable Securities laws of
such jurisdictions as the Managing Underwriters, if any, or Holders of a
majority of the Registrable Securities being sold may designate), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depositary Trust
Company and of printing prospectuses if the printing of prospectuses is
requested by the Special Counsel or the Holders of a majority of the Registrable
Securities included in any Registration Statement), (iii) reasonable fees and
disbursements of Trustee and its counsel and of the registrar and transfer agent
for the Common Stock, (iv) messenger, telephone and delivery expenses relating
to the performance of the Company's obligations hereunder, (v) reasonable fees
and disbursements of counsel for the Company and the Special Counsel in
connection with the Shelf Registration (provided that the Company shall not be
liable for the fees and expenses of more than one separate firm for all parties
participating in any transaction hereunder), (vi) fees and disbursements of all
independent certified public accountants referred to in Section 3(k)(iii) hereof
(including the expenses of any special audit and "cold comfort" letters required
by or incident to such performance) and (vii) Securities Act liability insurance
obtained by the Company in its sole discretion. In addition, the Company shall
pay its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit, the fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange
on which similar securities issued by the Company are then listed and the fees
and expenses of any person, including special experts, retained by the Company.
Notwithstanding the provisions of this Section 5, each seller of Registrable
Securities shall pay all registration expenses to the extent the Company is
prohibited by applicable Blue Sky laws from paying for or on behalf of such
seller of Registrable Securities.
Section 6. Indemnification. Indemnification by the Company. The Company
shall indemnify and hold harmless each Holder and each person, if any, who
controls any Holder (within the meaning of either Section 15 of the Securities
Act or Section 20(a) of the Exchange Act) from and against all losses,
liabilities, claims, damages and expenses (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (collectively, "Losses"), arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus 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 arise out of or based upon the
information relating to any Holder furnished to the Company in writing by such
Holder expressly for use therein; provided, that the Company shall not be liable
to any Holder of Registrable Securities (or any person controlling such Holder)
to the extent that any such Losses arise out of or are based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any preliminary prospectus if either (A) (i) such Holder failed to send or
deliver a copy of the Prospectus with or prior to the delivery of written
confirmation of the sale by such Holder to the person asserting the claim from
which such Losses arise and (ii) the Prospectus would have corrected such untrue
statement or alleged untrue statement or such omission or alleged omission, or
(B) (x) such untrue statement or alleged untrue statement, omission or alleged
omission is corrected in an amendment or supplement to the Prospectus and (y)
having previously been furnished by or on behalf of the Company with copies of
the Prospectus as so amended or supplemented, such Holder thereafter fails to
deliver such Prospectus as so amended or supplemented, with or prior to the
delivery of written confirmation of the sale of a Registrable Security to the
person asserting the claim from which such Losses arise. The Company shall also
indemnify each underwriter and each person who controls such person (within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act) to the same extent and with the same limitations as provided above with
respect to the indemnification of the Holders of Registrable Securities.
(b) Indemnification by Holder of Registrable Securities. Each Holder agrees
severally and not jointly to indemnify and hold harmless the Company, its
directors, its officers who sign a Registration Statement, and each person, if
any, who controls the Company (within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act), from and against all losses
arising out of or based upon any untrue statement of a material fact contained
in any Registration Statement, Prospectus or preliminary prospectus or arising
out of or based upon any omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, to the
extent, but only to the extent, that such untrue statement or omission is
contained in any information relating to such Holder so furnished in writing by
such Holder to the Company expressly for use in such Registration Statement or
Prospectus. In no event shall the liability of any selling Holder of Registrable
Securities hereunder be greater in amount than the dollar amount of the proceeds
received by such Holder upon the sale of the Registrable Securities giving rise
to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees and expenses of
more than one separate firm (in addition to any local counsel) for all Holders
and all persons, if any, who control any Holder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, and (b) the
fees and expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors, its officers who sign a Registration
Statement and each person, if any, who controls the Company within the meaning
of either such Section, and that all such fees and expenses shall be reimbursed
as they are incurred. In the case of any such separate firm for the Company, and
such directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. 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. To the extent that the indemnification provided for in
this Section 6 is unavailable to an indemnified party under Section 6(a) or 6(b)
hereof in respect of any Losses or is insufficient to hold such indemnified
party harmless, then each applicable 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, (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 or parties on the other
hand or (ii) if the allocation provided by clause (i) above 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 of the indemnified party
or parties on the other hand in connection with the statements or omissions that
resulted in such Losses, as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the total net
proceeds from the initial placement (before deducting expenses) of the
Convertible Notes pursuant to the Purchase Agreement. Benefits received by any
Holder shall be deemed to be equal to the value of receiving Underlying Common
Stock that is registered under the Securities Act. The relative fault of the
Holders on the one hand and the Company on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Holders or by the Company and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Holders' respective
obligations to contribute pursuant to this paragraph are several in proportion
to the respective number of Registrable Securities they have sold pursuant to a
Registration Statement, and not joint.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method or allocation that does not take into account
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
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 this Section 6(d), an
indemnifying party that is a selling Holder of Registrable Securities shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities sold by such indemnifying party and
distributed to the public were offered to the public exceeds the amount of any
damages which such indemnifying party has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement obligations of the
Company hereunder shall be in addition to any liability the Company may
otherwise have hereunder, under the Purchase Agreement or otherwise. The
provisions of this Section 6 shall survive so long as Registrable Securities
remain outstanding, notwithstanding any transfer of the Registrable Securities
by any Holder or any termination of this Agreement.
The indemnity and contribution provisions contained in this Section 6 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any Holder or
any person controlling any Holder, or the Company, its officers or directors or
any person controlling the Company and (iii) the sale of any Registrable
Securities by any Holder.
Section 7. Information Requirements. (a) The Company shall file the reports
required to be filed by it under the Securities Act and the Exchange Act, and if
at any time the Company is not required to file such reports, it will, upon the
request of any Holder of Registrable Securities, make publicly available, except
during a Deferral Period, other information so long as necessary to permit sales
of Convertible Notes and Underlying Common Stock pursuant to Rule 144 and Rule
144A under the Securities Act. The Company further covenants that it will
cooperate with any Holder of Registrable Securities and take such further
reasonable action as any Holder of Registrable Securities may reasonably request
(including, without limitation, making such reasonable representations as any
such Holder may reasonably request), all to the extent required from time to
time to enable such Holder to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144 and Rule 144A under the Securities Act. Upon the request of any Holder
of Registrable Securities, the Company shall deliver to such Holder a written
statement as to whether it has complied with such filing requirements.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities under any section of the
Exchange Act.
(b) The Company shall file the reports required to be filed by it under the
Exchange Act and shall comply with all other requirements set forth in the
instructions to Form S-3 in order to allow the Company to be eligible to file
registration statements on Form S-3.
Section 8. Submission to Jurisdiction. The Company irrevocably consents and
agrees, for the benefit of the Holders, that any legal action, suit or
proceeding against it with respect to its obligations, liabilities or any other
matter arising out of or in connection with this Agreement may be brought in the
courts of the State of New York or the courts of the United States located in
The City of New York and hereby irrevocably consents and submits to the
non-exclusive jurisdiction of each such court in personam, generally and
unconditionally, with respect to any such action, suit or proceeding for itself
and in respect of its properties, assets and revenues.
The Company has irrevocably designated, appointed and empowered Xxxxxxxx X.
Camera, Vice President, General Counsel and Secretary of the Company, as its
designee, appointee and agent to receive, accept and acknowledge for and on its
behalf, and its properties, assets and revenues, service of any and all legal
process, summons, notices and documents which may be served in any such action,
suit or proceeding referred to in the preceding paragraph of this Section 8
brought in any United States or State court that may be made on such designee,
appointee and agent in accordance with legal procedures prescribed for such
courts. Said designation and appointment shall be irrevocable until the end of
the Effectiveness Period, provided, however, that if for any reason such
designee, appointee and agent hereunder shall cease to be available to act as
such, the Company agrees to designate a new designee, appointee and agent in The
City of New York on the terms and for the purposes of this Section 8
satisfactory to the Initial Purchasers. The Company further hereby irrevocably
consents and agrees to the service of any and all legal process, summons,
notices and documents out of any of the aforesaid courts in any such action,
suit, or proceeding by serving a copy thereof upon the relevant agent for
service of process referred to in this Section 8 (whether or not the appointment
of such agent shall for any reason prove to be ineffective or such agent shall
accept or acknowledge such service) or by mailing copies thereof by registered
or certified air mail, postage prepaid, to the Company at its address specified
in or designated pursuant to Section 9 of this Agreement. The Company agrees
that the failure of such designee, appointee and agent to give any notice of
such service to it shall not impair or effect in any way the validity of such
service or any judgment rendered in any action or proceeding based thereon.
Nothing herein shall in any way be deemed to limit the ability of the Notice
Holders or the Holders of the Convertible Notes or the Underlying Common Stock,
to serve any such legal process, summons, notices and documents in any other
manner permitted by applicable law or to obtain jurisdiction over the Company or
bring actions, suits or proceedings against the Company in such other
jurisdictions, and in such manner, as may be permitted by applicable law. The
Company hereby irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection which it may now, or until the end of the
Effectiveness Period, have to the laying of venue or any of the aforesaid
actions, suits or proceedings arising out of or in connection with this
Agreement brought in the United States Federal courts located in The City of New
York or the courts of the States of New York and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
The provisions of this Section 8 shall survive any termination of this
Agreement, in whole or in part.
Section 9. Miscellaneous. (a) Remedies. In the event of a breach by the
Company of its obligations under this Agreement, each Holder of Registrable
Securities, in addition to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement, provided, that the sole damages payable for a
violation of the terms of this Agreement for which liquidated damages are
expressly provided pursuant to Section 2(e) hereof shall be such liquidated
damages. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(b) No Conflicting Agreements. The Company has not, as of the date hereof,
and shall not, on or after the date of this Agreement, enter into any agreement
with respect to its securities which conflicts with the rights granted to the
Holders of Registrable Securities in this Agreement. The Initial Purchasers
acknowledge that the registration rights agreements between the Company and
certain of holders of its Common Stock, as provided to the Initial Purchasers,
do not conflict with the rights granted to the Holders of Registrable Securities
in this Agreement.The Company represents and warrants that the rights granted to
the Holders of Registrable Securities hereunder do not in any way conflict with
the rights granted to the Holders of the Company's securities under any other
agreements.
(c) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of Holders of a majority of
the then outstanding Underlying Common Stock constituting Registrable Securities
(with Holders of Convertible Notes deemed to be the Holders, for purposes of
this Section, of the number of outstanding shares of Underlying Common Stock
into which such Debentures are convertible or exchangeable). Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of Registrable
Securities whose securities are being sold pursuant to a Registration Statement
and that does not directly or indirectly affect the rights of other Holders of
Registrable Securities may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders; provided, that the provisions
of this sentence may not be amended, modified, or supplemented except in
accordance with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing and shall be deemed given (i) when made, if
may by hand delivery, (ii) upon confirmation, if made by telecopier or (iii) one
(1) business day after being deposited with a reputable next-day courier,
postage prepaid, to the parties as follows (provided that with respect to any
notice of intention to sell given by a Holder to the Company pursuant to Section
2(d) hereof in accordance with this Section 9(d) which is given on or after
December 24 of any year and on or prior to January 1 of the next year, such
notice shall only be deemed given upon the earlier of actual receipt of such
notice by an attorney in the Legal Department of the Company or the first
Business Day next succeeding such January 1):
(x) if to a Holder of Registrable Securities, at the most
current address given by such Holder to the Company in accordance
with the provisions of Section 9(e);
(y) if to the Company, to:
The Interpublic Group of Companies, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Camera, General Counsel
Telecopy No.: (000) 000-0000
with a copy to:
The Interpublic Group of Companies, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Vice President & Treasurer
Telecopy No.: (000) 000-0000
and
(z) if to the Special Counsel, to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
or to such other address as such person may have furnished to the
other persons identified in this Section 9(d) in writing in
accordance herewith.
(e) Owner of Registrable Securities. The Company will maintain, or will
cause its registrar and transfer agent to maintain, a register with respect to
the Registrable Securities in which all transfers of Registrable Securities of
which the Company has received notice will be recorded. The Company may deem and
treat the person in whose name Registrable Securities are registered in such
register of the Company as the owner thereof for all purposes, including,
without limitation, the giving of notices under this Agreement.
(f) Approval of Holders. Whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its affiliates (as such term is
defined in Rule 405 under the Securities Act) (other than the Initial Purchasers
or subsequent Holders of Registrable Securities if such subsequent Holders are
deemed to be such affiliates solely by reason of their holdings of such
Registrable Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
(g) Successors and Assigns. Any person who purchases any Registrable
Securities from an Initial Purchasers shall be deemed, for purposes of this
Agreement, to be an assignee of such Initial Purchasers. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties and shall inure to the benefit of and be binding upon each Holder
of any Registrable Securities.
(h) 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 original and all of which taken together
shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
(k) Severability. If any term, provision, covenant or restriction of this
Agreement is held to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated thereby, and the parties hereto shall use their best efforts to find
and employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction. It
is hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such which may be hereafter declared invalid, void or
unenforceable.
(l) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and is intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and the registration rights granted by the
Company with respect to the Convertible Notes and the Underlying Common Stock of
the Company into which Convertible Notes are convertible or exchangeable sold
pursuant to the Purchase Agreement. Except as provided in the Purchase
Agreement, there are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein, with respect to the
registration rights granted by the Company with respect to the Convertible Notes
and the Underlying Common Stock of the Company into which the Convertible Notes
are convertible or exchangeable. This Agreement supersedes all prior agreements
and undertakings among the parties with respect to such registration rights.
(m) Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the court, shall be
entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
(n) Further Assurances. Each of the parties hereto shall use all reasonable
efforts to take, or cause to be taken, all appropriate action, do or cause to be
done all things reasonably necessary, proper or advisable under applicable law,
and execute and deliver such documents and other papers, as may be required to
carry out the provisions of this Agreement and the other documents contemplated
hereby and consummate and make effective the transactions contemplated hereby.
(o) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Sections 4, 5 or 6 hereof and the
obligations to make payments of and provide for liquidated damages under Section
2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
their terms.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Treasurer
Attest: Xxxxxxxx X. Camera
----------------------------------
Secretary
Accepted as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX, SACHS & CO
XXXXXXX XXXXX XXXXXX INC.
By: XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxx Xxxxx
-------------------------
Name: Xxxx Xxxxx
Title: Vice President
