EXHIBIT 4.14
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
Dated as of April 22, 1997
by and among
Panda Global Energy Company
and
Panda Global Holdings, Inc.
and
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
(the "Initial Purchaser")
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is
made and entered into as of April 22, 1997 by and among Panda
Global Energy Company, a Cayman Islands company (the "Issuer"),
Panda Global Holdings, Inc., a Delaware corporation (the
"Company") and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation (the "Initial Purchaser"), who has agreed to purchase
the Issuer's 12-1/2% Senior Secured Notes due 2004 together with the
related Guarantee by the Company (the "Notes") pursuant to the
Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement,
dated April 11, 1997 (the "Purchase Agreement"), by and among the
Issuer, the Company, Panda Energy International, Inc. and the
Initial Purchaser. In order to induce the Initial Purchaser to
purchase the Securities, the Issuer has agreed to provide the
registration rights set forth in this Agreement. The execution
and delivery of this Agreement is a condition to the obligations
of the Initial Purchaser set forth in Section 4(p) of the
Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Business Day: Any day other than a Legal Holiday.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Company Indenture: The Indenture, dated as of April 22,
1997, as supplemented by the First Supplemental Indenture thereto
dated as of April 22, 1997, between the Company and Bankers Trust
Company, as trustee (the "Company Indenture Trustee"), pursuant
to which the Guarantee is to be issued, as such Indenture is
amended or supplemented from time to time in accordance with the
terms thereof.
Consummate: A Registered Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence
of (i) the filing and effectiveness under the Securities Act of
the Exchange Offer Registration Statement relating to the
Registered Notes (as defined below) to be issued in the Exchange
Offer, (ii) the maintenance of such Registration Statement as
continuously effective and the keeping open of the Exchange Offer
for a period not less than the minimum period required pursuant
to Section 3(b) hereof and (iii) the delivery, by the Company and
the Issuer to the Registrar under the Senior Secured Notes
Indenture of the Registered Notes in the same aggregate principal
amount as the aggregate principal amount of the Notes tendered by
the Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Notes, each
Interest Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
Exchange Offer: The registration by the Company and the
Issuer under the Securities Act of the Registered Notes pursuant
to a Registration Statement pursuant to which the Issuer and the
Company offer the Holders of all outstanding Transfer Restricted
Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities held by such Holders for
Registered Notes in an aggregate principal amount equal to the
aggregate principal amount of Transfer Restricted Securities
tendered by such Holders in response to such exchange offer.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related
Prospectus.
Exempt Resales: The transactions in which the Initial
Purchaser proposes to sell the Notes to certain "qualified
institutional buyers," as such term is defined in Rule 144A under
the Securities Act, and to certain institutional "accredited
investors," as such term is defined in Rule 501(1), (2), (3) and
(7) of Regulation D under the Securities Act.
Guarantee: The guarantee by the Company of the obligations
of the Issuer under the Senior Secured Notes Indenture and the
Senior Secured Notes.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indentures: The Company Indenture and the Senior Secured
Notes Indenture.
Initial Purchaser: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indentures and the
Notes.
Legal Holiday: A Saturday, a Sunday or a day on which
federal offices or banking institutions in the City of New York,
in the city of the Corporate Trust Office of the Trustees, or at
a place of payment are authorized by law, regulation or executive
order to remain closed. If a payment date is a Legal Holiday,
payment may be made on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening
period.
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or
political subdivision thereof.
Prospectus: The Prospectus included in a Registration
Statement, as amended or supplemented by any Prospectus
supplement and by all other amendments thereto, including post-
effective amendments, and all material incorporated by reference
into such Prospectus.
Record Holder: With respect to any Damages Payment Date
relating to the Notes, each Person who is a Holder of the Notes
on the record date with respect to the Interest Payment Date on
which such Damages Payment Date shall occur.
Registered Notes: The Issuer's 12-1/2% Senior Secured Notes
due 2004 to be issued pursuant to the Senior Secured Notes
Indenture (i) in the Exchange Offer or (ii) upon the request of
any Holder of Notes covered by a Shelf Registration Statement, in
exchange for such Notes, together with the related Guarantee by
the Company.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the
Issuer and the Company relating to (a) an offering of Registered
Notes pursuant to an Exchange Offer or (b) the registration for
resale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, which is filed pursuant to the provisions
of this Agreement, in each case, including the Prospectus
included therein, all amendments and supplements thereto
(including post-effective amendments) and all exhibits and
material incorporated by reference therein.
Securities: The Notes and the Registered Notes.
Securities Act: The Securities Act of 1933, as amended.
Senior Secured Notes Indenture: The Indenture, dated as of
April 22, 1997, as supplemented by the First Supplemental
Indenture thereto dated as of April 22, 1997, between the Issuer
and Bankers Trust Company, as trustee (the "Senior Secured Notes
Trustee"), pursuant to which the Notes are to be issued, as such
Indenture is amended or supplemented from time to time in
accordance with the terms thereof.
Shelf Registration Statement: As defined in Section 4
hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Senior Secured
Notes Indenture.
Transfer Restricted Securities: Each Security , until the
earliest to occur of (a) the date on which such Security is
exchanged in the Exchange Offer by a Person other than a Broker-
Dealer for a Registered Note and is entitled to be resold to the
public by the Holder thereof without complying with the
prospectus delivery requirements of the Securities Act, (b)
following the exchange by a Broker-Dealer in the Exchange Offer
of a Note for a Registered Note, the date on which such
Registered Note is sold to a purchaser who receives from such
Broker-Dealer on or prior to the date of such sale a copy of the
Prospectus contained in the Exchange Offer Registration
Statement, (c) the date on which such Security effectively has
been registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (d) the date
on which such Security is eligible to be distributed to the
public pursuant to Rule 144 under the Securities Act.
Trustees: The Senior Secured Notes Trustee and the Company
Indenture Trustee.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Issuer are sold to an
underwriter for reoffering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities
entitled to the benefits of this Agreement are the Transfer
Restricted Securities. Without limiting the generality of the
foregoing, all obligations of the Company and the Issuer to file,
use their best efforts to have deemed effective or maintain the
effectiveness of any Registration Statement and the accrual of
liquidated damages under Section 5 shall cease with respect to a
Transfer Restricted Security immediately upon such Security no
longer being a Transfer Restricted Security.
(b) Holders of Transfer Restricted Securities. A Person is
deemed to be a holder of Transfer Restricted Securities (each, a
"Holder") whenever such Person owns Transfer Restricted
Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible
under applicable law or Commission policy (after the procedures
set forth in Section 6(a) below have been complied with), the
Company and the Issuer shall (i) cause to be filed under the
Securities Act with the Commission as soon as practicable after
the Closing Date, but in no event later than 60 days after the
Closing Date, an Exchange Offer Registration Statement relating
to the Registered Notes and the Exchange Offer, (ii) use their
best efforts to cause such Exchange Offer Registration Statement
to become effective at the earliest possible time, but in no
event later than 150 days after the Closing Date, (iii) in
connection with the foregoing, file (A) all pre-effective
amendments to such Exchange Offer Registration Statement as may
be necessary in order to cause such Exchange Offer Registration
Statement to become effective, (B) if applicable, a
post-effective amendment to such Exchange Offer Registration
Statement pursuant to Rule 430A under the Securities Act and (C)
all filings in connection with the registration and qualification
of the Registered Notes as are necessary under the Blue Sky laws
of such jurisdictions in order to permit Consummation of the
Exchange Offer, and (iv) commence the Exchange Offer on or prior
to ten Business Days after the date on which the Exchange Offer
Registration Statement is declared effective by the Commission,
and use their best efforts to issue Registered Notes in exchange
for all Transfer Restricted Securities validly tendered and not
properly withdrawn in the Exchange Offer. The Exchange Offer
shall be on the appropriate form permitting registration of the
Registered Notes to be offered in exchange for the Transfer
Restricted Securities and to permit resales of the Registered
Notes held by Broker-Dealers as contemplated by Section 3(c)
below.
(b) The Company and the Issuer shall keep the Exchange
Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to
Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 Business Days. The
Company and the Issuer shall cause the Exchange Offer to comply
with all applicable federal and state securities laws. No
securities other than the Securities shall be included in the
Exchange Offer Registration Statement. The Company and the
Issuer shall use their best efforts to cause the Exchange Offer
to be Consummated on the earliest practicable date after the
Exchange Act Registration Statement has become effective, but in
no event later than 30 Business Days thereafter.
(c) The Company and the Issuer shall indicate in a "Plan of
Distribution" section contained in the Prospectus contained in
the Exchange Offer Registration Statement that any Broker-Dealer
who holds Notes that are Transfer Restricted Securities and that
were acquired for its own account as a result of market-making
activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Issuer), may
exchange such Notes pursuant to the Exchange Offer; however, such
Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Securities Act and, consequently, must deliver a
prospectus meeting the requirements of the Securities Act in
connection with any resales of the Registered Notes received by
such Broker-Dealer in the Exchange Offer, which prospectus
delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section
shall also contain all other information with respect to such
resales by Broker-Dealers that the Commission may require in
order to permit such resales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose
the amount of the Securities held by any such Broker-Dealer
except to the extent required by the Commission as a result of a
change in law or policy after the date of this Agreement.
The Company and the Issuer shall use their reasonable best
efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented and amended as required by
the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of Registered Notes
acquired by any Broker-Dealer for its own account as a result of
market-making activities or other trading activities (provided
that upon the request of the Company or the Issuer, such Broker-
Dealer notifies the Company and the Issuer within 30 Business
Days after the Exchange Offer is Consummated that it has acquired
Registered Notes for its own account), and to ensure that such
Exchange Offer Registration Statement conforms with the
requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced
from time to time, for a period equal to two hundred and seventy
(270) consecutive days after the date the Exchange Offer is
Consummated (subject to the provisions of Section 6(c)(i) below).
In order to facilitate such resales, at any time during such
270-day period the Issuer and the Company shall provide to Broker-
Dealers, promptly upon request, and in no event more than (i) two
Business Days after any such request, sufficient copies of the
latest version of such Prospectus or (ii) if any fact or event
contemplated by clause (c)(iii)(D) of Section 6 shall exist or
have occurred, two Business Days for an appropriate supplement or
amendment to such Prospectus has been prepared (and any related
post-effective amendment to the Registration Statement has been
declared effective).
Any time period for the taking of an action referred to in this
Section 3 will be tolled for such period if the Company or the
Issuer is prohibited by law from taking the action in question
during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the Issuer
are not required to file an Exchange Offer Registration Statement
with respect to the Registered Notes or are not permitted to
consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law (after the procedures set forth in
Section 6(a) below have been complied with) or Commission policy
or (ii) if any Holder of Transfer Restricted Securities shall
notify the Company and the Issuer within 20 Business Days
following Consummation of the Exchange Offer that (A) such Holder
was prohibited by law or Commission policy from participating in
the Exchange Offer, (B) such Holder may not resell the Registered
Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder, or (C) such Holder is
a Broker-Dealer and holds the Notes acquired directly from the
Issuer or one of its affiliates, then the Company and the Issuer
shall (x) cause to be filed on or prior to 60 days after the date
on which the Issuer and the Company determine that they are not
required to file the Exchange Offer Registration Statement
pursuant to clause (i) above or 60 days after the date on which
the Issuer and the Company receive the notice specified in clause
(ii) above a shelf registration statement pursuant to Rule 415
under the Securities Act (which may be an amendment to the
Exchange Offer Registration Statement (in either event, the
"Shelf Registration Statement")), relating to all Transfer
Restricted Securities or, in the circumstances provided in clause
(ii) above, all Transfer Restricted Securities held by Holders
who were not eligible to participate in the Exchange Offer by
reason of subclause (A), (B), or (C) of clause (ii) above and who
shall have provided the information required pursuant to Section
4(b) hereof, and shall (y) use their respective best efforts to
cause the Shelf Registration Statement to be declared effective
by the Commission on or prior to 150 days after such obligation
arises; provided that in the circumstances provided in clause (i)
above, if the Issuer and the Company have not consummated the
Exchange Offer within 180 days of the Closing Date, then the
Issuer and the Company will file the Shelf Registration Statement
with the Commission on or prior to the 181st day after the
Closing Date. If, after the Company and the Issuer have filed an
Exchange Offer Registration Statement which satisfies the
requirements of Section 3(a) above, the Company and the Issuer
are required to file a Shelf Registration Statement solely
because the Exchange Offer shall not be permitted under
applicable federal law, then the filing of the Exchange Offer
Registration Statement shall be deemed to satisfy the
requirements of clause (x) above. Such an event shall have no
effect on the requirements of clause (y) above or on the
Effectiveness Target Date as defined in Section 5 below.
Furthermore, if, after the Company and the Issuer have filed an
Exchange Offer Registration Statement which satisfies the
requirements of Section 3(a) above, the Company and the Issuer
are required to file a Shelf Registration Statement solely
because the Exchange Offer has not been Consummated within 180
days of the Closing Date, then, if the Exchange Offer
Registration Statement has been declared effective before the
Shelf Registration Statement has been declared effective and the
Company and the Issuer commence the Exchange Offer promptly after
the Exchange Offer Registration Statement has been declared
effective, the obligations of the Company and the Issuer to use
their best efforts to cause the Shelf Registration Statement to
be declared effective shall be suspended until the Exchange Offer
shall have been Consummated or for any reason terminated prior to
Consummation, and shall cease entirely upon Consummation of the
Exchange Offer.
Each of the Company and the Issuer shall use its reasonable
best efforts to keep such Shelf Registration Statement
continuously effective, supplemented and amended as required by
the provisions of Sections 6(b) and (c) hereof for a period of
three years from the Closing Date (as extended pursuant to
Section 6(c)(i)) or such shorter period that will terminate when
all the Securities covered by such Shelf Registration Statement
are no longer Transfer Restricted Securities or all the
Securities covered by such Shelf Registration Statement have been
sold pursuant thereto, and to ensure that such Shelf Registration
Statement conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of three
years from the Closing Date (as extended pursuant to Section
6(c)(i)) or such shorter period that will terminate when all the
Securities covered by such Shelf Registration Statement are no
longer Transfer Restricted Securities or all the Securities
covered by such Shelf Registration Statement have been sold
pursuant thereto.
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of
Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement
pursuant to this Agreement unless and until such Holder furnishes
to the Company and the Issuer in writing, within 20 days after
receipt of a request therefor, such information as the Company
and the Issuer reasonably may request for use in connection with
any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted
Securities shall be entitled to liquidated damages pursuant to
Section 5 hereof unless and until such Holder shall have used its
best efforts to provide all such reasonably requested
information. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the
Company and the Issuer all information required to be disclosed
in order to make the information previously furnished to the
Company and the Issuer by such Holder not materially misleading.
(c) Restrictions on Sale of Certain Securities by Others.
The Company and the Issuer agree not to, and to use their
reasonable best efforts to cause their affiliates not to, offer,
sell, contract to sell or grant any option to purchase or
otherwise transfer or dispose of any debt security issued by the
Company or the Issuer or any security convertible into or
exchangeable or exercisable for any such debt security, including
a sale pursuant to Rule 144 under the Securities Act, during the
30-day period beginning on the closing date of each Underwritten
Offering made pursuant to the Shelf Registration Statement
(except as part of such Underwritten Registration).
(d) Tolling. Any time period for the taking of an action
referred to in this Section 4 will be tolled for such period if
the Company or the Issuer is prohibited by law from taking the
action in question during such period.
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this
Agreement are not filed with the Commission on or prior to the
date specified for such filing in Section 3 or 4 of this
Agreement, (ii) any of such Registration Statements have not been
declared effective by the Commission on or prior to the date
specified for such effectiveness in Section 3 or 4 of this
Agreement (the "Effectiveness Target Date"), (iii) the Exchange
Offer has not been Consummated within 30 days of the
Effectiveness Target Date with respect to the Exchange Offer
Registration Statement or (iv) subject to the provisions of
Section 6(c)(i) below, any Registration Statement required by
this Agreement is filed and declared effective but shall
thereafter, subject to certain exceptions, cease to be effective
for a period of five Business Days during periods when it is
required to be effective or (v) at any time when the Prospectus
is required by the Securities Act to be delivered in connection
with sales of Transfer Restricted Securities, the Issuer and the
Company shall conclude, or the Holders of a majority in principal
amount of the affected Transfer Restricted Securities shall
reasonably conclude, based on advice of their counsel, and shall
give notice to the Issuer and the Company, that either (A) any
event shall occur or fact exist as a result of which it is
necessary to amend or supplement the Prospectus in order that it
will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they
were made, not misleading, or (B) it shall be necessary to amend
or supplement the Registration Statement or the Prospectus in
order to comply with the requirements of the Securities Act or
the rules of the Commission thereunder, and in the case of clause
(A) or (B), the Registration Statement is not appropriately
amended by an effective post-effective amendment, or the
Prospectus is not amended or supplemented, in a manner reasonably
satisfactory to the Holders of Transfer Restricted Securities
within five Business Days after the Issuer and the Company shall
so conclude or shall receive the above-mentioned notice from
Holders of Transfer Restricted Securities (each such event
referred to in clauses (i) through (v) above a "Registration
Default"), then the Issuer and the Company hereby, jointly and
severally, agree to pay liquidated damages to each Holder of
Transfer Restricted Securities to which a Registration Default
applies, in respect of any and all Registration Defaults, during
the first 90-day period immediately following the occurrence of
such Registration Default, in an amount equal to $.05 per week
per $1,000 principal amount of the Transfer Restricted Securities
held by such Holder for so long as the Registration Default
continues. The amount of liquidated damages payable to each
Holder shall increase by an additional $.05 per week per $1,000
principal amount of Transfer Restricted Securities held by such
Holder for each subsequent 90-day period, up to a maximum amount
of liquidated damages of $.50 per week per $1,000 principal
amount of Transfer Restricted Securities held by such Holder.
Notwithstanding anything to the contrary set forth herein, (1)
upon filing of the Exchange Offer Registration Statement (and/or,
if applicable, the Shelf Registration Statement), in the case of
(i) above, (2) upon the effectiveness of the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (ii) above, (3) upon
Consummation of the Exchange Offer, in the case of (iii) above,
or (4) upon the filing of a post-effective amendment to the
Registration Statement or an additional Registration Statement
that causes the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement) to again be
declared effective or made usable in the case of (iv) above, the
liquidated damages payable with respect to the Transfer
Restricted Securities as a result of such clause (i), (ii), (iii)
or (iv), as applicable, shall cease. Except in the case of bad
faith on the part of the Company or the Issuer, no event referred
to in clauses (i) through (v) above shall constitute a breach of
this Agreement, giving rise to any claim other than for the
payment of liquidated damages contemplated hereby, but shall
constitute a Registration Default subject to the provisions of
this Section 5.
All accrued liquidated damages shall be paid by the Company
and the Issuer on each Damages Payment Date (i) to Global Note
Holders by wire transfer of immediately available funds or by
federal funds check and (ii) to Holders of Certificated Notes by
mailing checks to their registered addresses. Following the cure
of all Registration Defaults relating to any particular Transfer
Restricted Securities, the accrual of liquidated damages with
respect to such Transfer Restricted Securities will cease. All
obligations of the Company and the Issuer set forth in the
preceding paragraph that are outstanding with respect to any
Transfer Restricted Security at the time such security ceases to
be a Transfer Restricted Security shall survive until such time
as all such obligations with respect to such security shall have
been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection
with the Exchange Offer, the Company and the Issuer shall comply
with all of the provisions of Section 6(c) below, shall use their
reasonable best efforts to effect such exchange to permit the
sale of Transfer Restricted Securities being sold in accordance
with the intended method or methods of distribution thereof, and
shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the
Company and the Issuer there is a question as to whether the
Exchange Offer is permitted by applicable law, the Company and
the Issuer hereby agree to seek a no-action letter or other
favorable decision from the Commission allowing the Company
and the Issuer to Consummate an Exchange Offer for such Notes.
The Company and the Issuer hereby agree to pursue the issuance
of such a decision to the Commission staff level, but shall
not be required to take commercially unreasonable action to
effect a change of Commission policy. The Company and the
Issuer hereby agree, however, (A) to participate in telephonic
conferences with the Commission, (B) to deliver to the
Commission staff an analysis prepared by counsel to the
Company and the Issuer setting forth the legal bases, if any,
upon which such counsel has concluded that such an Exchange
Offer should be permitted and (C) to pursue diligently a
resolution (which need not be favorable) by the Commission
staff of such submission.
(ii) As a condition to its participation in the
Exchange Offer pursuant to the terms of this Agreement, each
Holder of Transfer Restricted Securities, on its own behalf
and on behalf of all beneficial owners of such Transfer
Restricted Securities, shall furnish, upon the request of the
Company and the Issuer, prior to the Consummation thereof, a
written representation to the Company and the Issuer (which
may be contained in the letter of transmittal contemplated by
the Exchange Offer Registration Statement) to the effect that
such Holder (A) is not an affiliate of the Company or the
Issuer, (B) is not engaged in, and does not intend to engage
in, and has no arrangement or understanding with any person to
participate in, a distribution of the Registered Notes to be
issued in the Exchange Offer and (C) is acquiring the
Registered Notes in its ordinary course of business. Each
Holder hereby acknowledges and agrees that any Broker-Dealer
and any such Holder using the Exchange Offer to participate in
a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of
the Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993,
and similar no-action letters (including any no-action letter
obtained pursuant to clause (i) above), and (2) must comply
with the registration and prospectus delivery requirements of
the Securities Act in connection with a secondary resale
transaction and that such a secondary resale transaction
should be covered by an effective registration statement
containing the selling security holder information required by
Item 507 or 508, as applicable, of Regulation S-K if the
resales are of the Registered Notes obtained by such Holder in
exchange for Notes acquired by such Holder directly from the
Issuer or an affiliate thereof.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Issuer shall
provide, if requested by the Commission, a supplemental letter
to the Commission (A) stating that the Company and the Issuer
are registering the Exchange Offer in reliance on the position
of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988) and Xxxxxx Xxxxxxx and
Co., Inc. (available June 5, 1991) and, if applicable, any no-
action letter obtained pursuant to clause (i) above and (B)
including a representation that the Company and the Issuer
have not entered into any arrangement or understanding with
any Person to distribute the Registered Notes to be received
in the Exchange Offer, to the best of the Company's and the
Issuer's information and belief, each Holder participating in
the Exchange Offer is acquiring the Registered Notes in its
ordinary course of business and has no arrangement or
understanding with any Person to participate in the
distribution of the Registered Notes received in the Exchange
Offer.
(b) Shelf Registration Statement. In connection with the
Shelf Registration Statement, the Company and the Issuer shall
comply with all of the provisions of Section 6(c) below and shall
use their best efforts to effect such registration to permit the
sale of the Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution
thereof, and pursuant thereto the Company and the Issuer as
expeditiously as possible will prepare and file with the
Commission a Registration Statement relating to the registration
on any appropriate form under the Securities Act, which form
shall be available for the sale of the Transfer Restricted
Securities in accordance with the intended method or methods of
distribution thereof.
(c) General Provisions. In connection with any
Registration Statement and any Prospectus required by this
Agreement in order to permit the sale or resale of Transfer
Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to
permit resales of the Securities by Broker-Dealers), the Company
and the Issuer shall:
(i) use their reasonable best efforts to keep such
Registration Statement continuously effective and provide all
requisite financial statements for the period specified in
Section 3 or 4 of this Agreement, as applicable. Upon the
occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be effective
and usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Company and the
Issuer promptly shall file an appropriate amendment to such
Registration Statement, in the case of clause (A), correcting
any such misstatement or omission, and, in the case of either
clause (A) or (B), use their best efforts to cause such
amendment to be declared effective and such Registration
Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter.
Notwithstanding the foregoing, the Company and the Issuer may
suspend the effectiveness of (1) the Registration Statement
relating to the Exchange Offer for up to 45 days during the
270-day period referred to in Section 3(c) and (2) the Shelf
Registration Statement for up to 90 days in each year during
which such Shelf Registration Statement is required to be
effective and usable hereunder (measured from the date of
effectiveness of such Shelf Registration Statement to
successive anniversaries thereof) if (A) either (y)(I) the
Company and the Issuer shall be engaged in a material
acquisition or disposition and (II)(aa) such acquisition or
disposition is required to be disclosed in the Registration
Statement, the related Prospectus or any amendment or
supplement thereto, or the failure by the Company and the
Issuer to disclose such transaction in the Registration
Statement or related Prospectus, or any amendment or
supplement thereto, as then amended or supplemented, would
cause such Registration Statement, Prospectus or amendment or
supplement thereto, to contain an untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statement therein, in the light of the
circumstances under with they were made, not misleading, (bb)
information regarding the existence of such acquisition or
disposition has not then been publicly disclosed by or on
behalf of the Company and the Issuer and (cc) a majority of
the Board of Directors of the Company or the Issuer determines
in the exercise of its good faith judgment that disclosure of
such acquisition or disposition would not be in the best
interest of the Company or the Issuer and its subsidiaries or
would have a material adverse effect on the consummation of
such acquisition or disposition or (z) a majority of the Board
of Directors of the Company or the Issuer determines in the
exercise of its good faith judgment that compliance with the
disclosure obligations set forth in this Section 6(c)(i) would
otherwise have a material adverse effect on the Company or the
Issuer and its subsidiaries, taken as a whole, and (B) the
Company and the Issuer notify the Holders within two Business
Days after such Board of Directors makes the relevant
determination set forth in clause (A); provided, however, that
in each such case the applicable period specified in Section 3
and 4 hereof during which the applicable Registration
Statement is required to be kept effective and usable shall be
extended by the number of days during which such effectiveness
was suspended pursuant to the foregoing;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in
Section 3 or 4 hereof, as applicable, or such shorter period
as will terminate when all Transfer Restricted Securities
covered by such Registration Statement have been sold; cause
the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act, and to comply fully with
the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; 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 method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement
to the Prospectus;
(iii) advise the underwriter(s), if any, and selling
Holders and, if requested by such Persons, confirm such advice
in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and,
with respect to any Registration Statement or any post-
effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments
to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement
under the Securities Act or of the suspension by any state
securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of
the preceding purposes, (D) of the existence of any fact or
the happening of any event that makes any statement of a
material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any
document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Company and the Issuer
shall use their best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) furnish to the Initial Purchaser, each of the
selling Holders and each of the underwriter(s), if any, before
filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments
or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference
after the initial filing of such Registration Statement),
which documents will be subject to the review of such Holders
and underwriter(s), if any, for a period of at least five
Business Days, and neither the Company nor the Issuer will
file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or
Prospectus (including all such documents incorporated by
reference) to which a selling Holder of Transfer Restricted
Securities covered by such Registration Statement or the
underwriter(s), if any, shall object within five Business Days
after the receipt thereof. A selling Holder or underwriter,
if any, shall be deemed to have objected reasonably to such
filing if such Registration Statement, amendment, Prospectus
or supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission or fails to
comply with the applicable requirements of the Securities Act;
(v) promptly prior to the filing of any document that is
to be incorporated by reference into a Registration Statement
or Prospectus, provide copies of such document to the selling
Holders and to the underwriter(s), if any, make the Company's
and the Issuer's representatives available for discussion of
such document and other customary due diligence matters, and
include such information in such document prior to the filing
thereof as such selling Holders or underwriter(s), if any,
reasonably may request;
(vi) make available at reasonable times for
inspection by the selling Holders, any underwriter
participating in any disposition pursuant to such Registration
Statement, and any attorney or accountant retained by such
selling Holders or any of the underwriter(s), all financial
and other records, pertinent corporate documents and
properties of the Company and the Issuer and cause the
Company's and the Issuer's officers, directors and employees
to supply all information reasonably requested by any such
Holder, underwriter, attorney or accountant in connection with
such Registration Statement subsequent to the filing thereof
and prior to its effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any
Registration Statement or Prospectus, pursuant to a supplement
or post-effective amendment if necessary, such information as
such selling Holders and underwriter(s), if any, reasonably
may request to have included therein, including, without
limitation, information relating to the "Plan of Distribution"
of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted
Securities being sold to any such underwriter(s), the purchase
price being paid therefor and any other terms of the Transfer
Restricted Securities to be sold in such offering; and make
all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the
Company and the Issuer are notified of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment;
(viii) cause the Transfer Restricted Securities
covered by the Registration Statement to be rated with the
appropriate rating agencies, if so requested by the Holders of
a majority in aggregate principal amount of the Securities
covered thereby or the underwriter(s), if any;
(ix) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of
the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) and any
amendment or supplement thereto as such Persons reasonably may
request; the Company and the Issuer hereby consent to the use
of the Prospectus and any amendment or supplement thereto by
each of the selling Holders and each of the underwriter(s), if
any, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or
any amendment or supplement thereto;
(xi) enter into such agreements (including an
underwriting agreement), and make such representations and
warranties, and take all such other actions in connection
therewith in order to expedite or facilitate the disposition
of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement, all to
such extent as may be requested by the Initial Purchaser or by
any Holder of Transfer Restricted Securities or underwriter in
connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement; and
whether or not an underwriting agreement is entered into and
whether or not the registration is an Underwritten
Registration, each of the Company and the Issuer shall:
(A) furnish to the Initial Purchaser, each selling
Holder and each underwriter, if any, in such substance and
scope as they may request and as are customarily made by
issuers to underwriters in primary underwritten offerings,
upon the date of the Consummation of the Exchange Offer and,
if applicable, upon the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as the
case may be, signed by (x) the President or any Vice
President and (y) a principal financial or accounting
officer of each of the Company and the Issuer,
confirming, as of the date thereof, the matters set forth
in paragraphs (a), (b), (c) and (d) and (e) of Section 7
of the Purchase Agreement and such other matters as such
parties may reasonably request;
(2) an opinion, dated the date of Consummation
of the Exchange Offer or the date of effectiveness of the
Shelf Registration Statement, as the case may be, of
counsel for the Company and the Issuer covering the
matters set forth in paragraphs (g) and (h) of Section 7
of the Purchase Agreement and such other matters as the
Holders and/or managing underwriter(s) reasonably may
request, and in any event including a statement to the
effect that such counsel has participated in conferences
with officers and other representatives of the Company
and the Issuer, representatives of the independent public
accountants for the Company and the Issuer, the Initial
Purchaser's representatives and the Initial Purchaser's
counsel in connection with the preparation of such
Registration Statement and the related Prospectus and
have considered the matters required to be stated therein
and the statements contained therein, although such
counsel has not independently verified the accuracy,
completeness or fairness of such statements; and that on
the basis of the foregoing (relying upon facts provided
to such counsel by officers and other representatives of
the Company and the Issuer and without independent check
or verification), that no facts came to such counsel's
attention that caused such counsel to believe that the
applicable Registration Statement, at the time such
Registration Statement or any post-effective amendment
thereto became effective, and, in the case of the
Exchange Offer Registration Statement, as of the date of
Consummation, contained an untrue statement of a material
fact or omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading, or that the Prospectus contained
in such Registration Statement as of its date and, in the
case of the opinion dated the date of Consummation of the
Exchange Offer, as of the date of Consummation, contained
an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the
statements therein, in light of the circumstances under
which they were made, not misleading. Without limiting
the foregoing, such counsel may state further that such
counsel assumes no responsibility for, and has not
independently verified, the accuracy, completeness or
fairness of the financial statements, notes and schedules
and other financial data, the reports of independent
engineers and consultants or other financial, engineering
and statistical data included in any Registration
Statement contemplated by this Agreement or the related
Prospectus; and
(3) customary comfort letters, dated as of the
date of Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as the
case may be, from the Company's and the Issuer's past and
present independent accountants, in the customary form
and covering matters of the type customarily covered in
comfort letters to underwriters in connection with
primary underwritten offerings, and affirming the matters
set forth in the comfort letters delivered pursuant to
Section 7(u) of the Purchase Agreement, without
exception;
(B) set forth in full or incorporate by reference in
the underwriting agreement, if any, the indemnification
provisions and procedures of Section 8 hereof with respect
to all parties to be indemnified pursuant to said Section;
and
(C) deliver such other documents and certificates as
reasonably may be requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company and the Issuer
pursuant to this clause (xi), if any.
The provisions of this clause (A) shall be applicable at
each closing under such underwriting or similar agreement, as
and to the extent required thereunder and, if at any time the
representations and warranties of the Company and the Issuer
contemplated in clause (A)(1) above cease to be true and
correct, the Company and the Issuer promptly shall so advise
the Initial Purchaser and the underwriter(s), if any, and each
selling Holder and, if requested by such Persons, shall
confirm such advice in writing;
(xii) prior to any public offering of Transfer
Restricted Securities, cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue
Sky laws of such jurisdictions as the selling Holders or
underwriter(s) may request and do any and all other acts or
things necessary or advisable to enable the disposition in
such jurisdictions of the Transfer Restricted Securities
covered by the Shelf Registration Statement; provided,
however, that neither the Company nor the Issuer shall be
required to register or qualify as a foreign corporation where
it is not now so qualified or to take any action that would
subject it to the service of process in suits or to taxation,
other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not
now so subject;
(xiii) upon the request of any Holder of Notes covered
by the Shelf Registration Statement, issue Registered Notes,
having an aggregate principal amount equal to the aggregate
principal amount of Notes surrendered to the Issuer by such
Holder in exchange therefor or being sold by such Holder, such
Registered Notes to be registered in the name of such Holder
or in the name of the purchaser(s) of such Securities, as the
case may be; in return, the Notes held by such Holder shall be
surrendered to the Issuer for cancellation;
(xiv) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends,
and enable such Transfer Restricted Securities to be in such
denominations and registered in such names as the Holders or
the underwriter(s), if any, may request at least two Business
Days prior to any sale of Transfer Restricted Securities made
by such underwriter(s);
(xv) use their best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to
be registered with or approved by such other governmental
agencies or authorities as may be necessary in order to enable
the seller or sellers thereof or the underwriter(s), if any,
to consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in clause (xii)
above;
(xvi) if any fact or event contemplated by clause
(c)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not
misleading; provided, however, the Company and the Issuer
shall not be required to comply with this clause (xvi) if, and
only for so long as (A) either (l)(y) the Company and the
Issuer shall be engaged in a material acquisition or
disposition and (z)(I) such acquisition or disposition is
required to be disclosed in the Registration Statement, the
related Prospectus or any amendment or supplement thereto, or
the failure by the Company and the Issuer to disclose such
transaction in the Registration Statement or related
Prospectus, or any amendment or supplement thereto, as then
amended or supplemented, would cause such Registration
Statement, Prospectus or amendment or supplement thereto, to
contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
with they were made, not misleading, (II) information
regarding the existence of such acquisition or disposition has
not been publicly disclosed by or on behalf of the Company and
the Issuer and (III) a majority of the Board of Directors of
the Company or the Issuer determines in the exercise of its
good faith judgment that disclosure of such acquisition or
disposition would not be in the best interests of the Company
and the Issuer and its subsidiaries or would have a material
adverse effect on the consummation of such acquisition or
disposition or (2) a majority of the Board of Directors of the
Company or the Issuer determines in the exercise of its good
faith judgment that compliance with the disclosure obligations
set forth in this clause (xvi) would otherwise have a material
adverse effect on the Company and the Issuer and its
subsidiaries, taken as whole, and (B) the Issuer notifies the
Holders within two Business Days after the Board of Directors
makes the relevant determination set forth in clause (A);
provided, however, that in each such case the period specified
in Section 3 and 4 hereof during which the applicable
Registration Statement is required to be kept effective and
usable shall be extended by the number of days during which
such effectiveness was suspended pursuant to the foregoing;
(xvii) provide a CUSIP number for all Transfer
Restricted Securities not later than the effective date of the
Registration Statement, and provide the Trustees under the
Indentures with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit
with the Depository Trust Company;
(xviii) cooperate and assist in any filings required to
be made with the NASD and in the performance of any due
diligence investigation by any underwriter (including any
"qualified independent underwriter") that is required to be
retained in accordance with the rules and regulations of the
NASD, and use their reasonable best efforts to cause such
Registration Statement to become effective and approved by
such governmental agencies or authorities as may be necessary
to enable the Holders selling Transfer Restricted Securities
to consummate the disposition of such Transfer Restricted
Securities;
(xix) otherwise use their reasonable best efforts to
comply with all applicable rules and regulations of the
Commission, and make generally available to their security
holders, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not
be audited) for the twelve-month period (A) commencing at the
end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best efforts
Underwritten Offering or (B) if not sold to underwriters in
such an offering, beginning with the first month of the
Company's and the Issuer's first fiscal quarter commencing
after the effective date of the Registration Statement;
(xx) cause the Indentures to be qualified under the
TIA not later than the effective date of the first
Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustees and the
Holders of the Securities to effect such changes to the
Indentures as may be required for such Indentures to be so
qualified in accordance with the terms of the TIA; and execute
and use their best efforts to cause the Trustees to execute,
all documents that may be required to effect such changes and
all other forms and documents required to be filed with the
Commission to enable such Indentures to be so qualified in a
timely manner;
(xxi) use their reasonable best efforts to cause all
Transfer Restricted Securities covered by the Registration
Statement to be listed on each securities exchange on which
similar securities issued by the Company and the Issuer are
then listed if requested by the Holders of a majority of the
outstanding shares or aggregate principal amount of the
Securities, or the underwriters, if any; and
(xxii) provide promptly to each Holder upon request
each document filed with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by
acquisition of a Transfer Restricted Security that, upon receipt
of any notice from the Company and the Issuer of the existence of
any fact of the kind described in Section 6(c)(iii)(D) hereof,
such Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable Registration
Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section
6(c)(xvi) hereof, or until it is advised in writing (the
"Advice") by the Company and the Issuer that the use of the
Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by
reference in the Prospectus. If so directed by the Company and
the Issuer, each Holder will deliver to the Issuer (at the
Issuer's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such
Transfer Restricted Securities that was current at the time of
receipt of such notice. In the event the Company and the Issuer
shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in
Section 3 or 4 hereof, as applicable, shall be extended by the
number of days during the period from and including the date of
the giving of such notice pursuant to Section 6(c)(iii)(D) hereof
to and including the date when each selling Holder covered by
such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section
6(c)(xvi) hereof or shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Issuer's
performance of or compliance with this Agreement will be borne by
the Company and the Issuer, regardless of whether a Registration
Statement becomes effective, including without limitation:
(i) all registration and filing fees and expenses (including
filings made by the Initial Purchaser or any Holder with the NASD
(and, if applicable, the fees and expenses of any "qualified
independent underwriter" and its counsel that may be required by
the rules and regulations of the NASD)); (ii) all fees and
expenses of compliance with federal securities and state Blue Sky
or securities laws; (iii) all expenses of printing (including
printing certificates for the Registered Notes to be issued in
the Exchange Offer and printing of Prospectuses), messenger and
delivery services and telephone; (iv) all fees and disbursements
of counsel for the Issuer, the Company and, subject to Section
7(b) below, the Holders of Transfer Restricted Securities; (v)
all application and filing fees in connection with listing the
Securities on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and (vi)
all fees and disbursements of independent certified public
accountants of the Company and the Issuer (including the expenses
of any special audit and comfort letters required by or incident
to such performance).
Each of the Company and the Issuer will, in any event, bear
its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and
the fees and expenses of any Person, including special experts,
retained by the Company or the Issuer.
(b) The Company and the Issuer, jointly and severally, will
reimburse the Initial Purchaser and the Holders for the
reasonable fees and disbursements of Xxxxxxx Xxxxxxx & Xxxxxxxx,
acting for the Initial Purchaser or Holders in connection with
the offer and sale of the Securities pursuant to each
Registration Statement required by this Agreement.
SECTION 8. INDEMNIFICATION
(a) The Company and the Issuer, jointly and severally,
agree to indemnify and hold harmless (i) each Holder and (ii)
each person, if any, who controls (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) any
Holder (any of the persons referred to in this clause (ii) being
hereinafter referred to as a "controlling person") and (iii) the
respective officers, directors, partners, employees,
representatives and agents of each Holder and each controlling
person (any person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an "Indemnified Holder") to the
fullest extent lawful, from and against any and all losses,
claims, damages, judgments, actions and other liabilities
(collectively, "Liabilities"), and will reimburse each
Indemnified Holder for all fees and expenses (including, without
limitation, the reasonable fees and expenses of counsel to any
Indemnified Holder) (collectively, "Expenses") as they are
incurred in investigating, preparing, pursuing or defending any
claim or action, or any proceeding or investigation by any
governmental agency or body, whether or not in connection with
pending or threatened litigation and whether or not any
Indemnified Holder is a party (collectively, "Actions"), directly
or indirectly caused by, related to, based upon, arising out of
or in connection with any untrue statement or alleged untrue
statement of a material fact contained in any Registration
Statement, preliminary Prospectus or Prospectus (including any
amendments thereof and supplements thereto), or by any omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except insofar as such Liabilities or Expenses are
caused by an untrue statement or omission or alleged untrue
statement or omission that is made in reliance upon and in
conformity with information relating to an Indemnified Holder
furnished in writing to the Company or the Issuer by such
Indemnified Holder expressly for use therein. If either the
Issuer or the Company reimburses a Holder hereunder for any
Expenses, such Holder hereby agrees to refund such reimbursement
of Expenses to the extent that the Holder is not entitled to be
indemnified hereunder. The Company or the Issuer shall notify
each Indemnified Holder promptly of the institution, threat or
assertion of any Action in connection with the matters addressed
by this Agreement which involves the Company or the Issuer or an
Indemnified Holder.
Upon receipt by an Indemnified Holder of notice of an Action
against such Indemnified Holder with respect to which indemnity
may be sought under this Section 8, such Indemnified Holder shall
promptly notify the Company and the Issuer in writing; provided
that the failure to so notify the Issuer and the Company shall
not relieve the Company and the Issuer from any liability which
the Issuer or the Company may have on account of this indemnity
or otherwise, except to the extent the Company and the Issuer
shall have been materially prejudiced by such failure. The
Issuer and the Company shall, if requested by such Indemnified
Holder, assume the defense of any such Securities Action (as such
term is defined in the Purchase Agreement) including the
employment of counsel reasonably satisfactory to such Indemnified
Holder. Any Indemnified Holder shall have the right to employ
separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Holder, unless: (i) the
Issuer and the Company have failed promptly to assume the defense
and employ counsel reasonably satisfactory to such indemnified
party, (ii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the
indemnifying party or (iii) the named parties to any such
Securities Action (including any impleaded parties) include such
Indemnified Holder and the Issuer or the Company, and such
Indemnified Holder shall have been advised by counsel that there
may be one or more legal defenses available to it which are
different from or in addition to those available to the Issuer or
the Company, provided that the Issuer and the Company shall not
in such event be responsible hereunder for the fees and expenses
of more than one firm of separate counsel in connection with any
Securities Action in the same jurisdiction, in addition to any
local counsel. The Company and the Issuer shall not be liable
for any settlement of any Action effected without its written
consent (which shall not be unreasonably withheld) and the
Company and the Issuer agree to indemnify and hold harmless any
Indemnified Holder from and against any Liability or Expense by
reason of any settlement of any Action effected with the written
consent of the Company and the Issuer. In addition, the Company
and the Issuer will not, without the prior written consent of
each Indemnified Holder, settle any pending or threatened Action
in respect of which indemnification or contribution may be sought
hereunder (whether or not any Indemnified Holder is a party
thereto), unless such settlement includes an unconditional
release of such Indemnified Holder from all Liabilities on claims
that are the subject matter of such proceeding.
(b) Each Holder of Transfer Restricted Securities agrees,
severally and not jointly, to indemnify and hold harmless the
Company and the Issuer, and its directors, officers, and any
person controlling (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) the Company and
the Issuer, and the respective officers, directors, partners,
employees, representatives and agents of each such person, to the
same extent as the foregoing indemnity from the Company and the
Issuer to each of the Indemnified Holders, but only with respect
to Liabilities and Expenses incurred in investigating, preparing,
pursuing or defending Actions directly or indirectly caused by,
related to, based upon, arising out of or in connection with any
untrue statement or omission or alleged untrue statement of a
material fact contained in any Registration Statement,
preliminary Prospectus or Prospectus (including any amendments
thereof and supplements thereto) that was made in reliance upon
and in conformity with information relating to such Holder
furnished in writing by or on behalf of such Holder expressly for
use in any Registration Statement or Prospectus or any amendment
or supplement thereto. In case any Action shall be brought
against the Company and the Issuer or their directors or officers
or any such controlling person in respect of which indemnity may
be sought against a Holder of Transfer Restricted Securities,
such Holder shall have the rights and duties given the Company
and the Issuer and the Company and the Issuer or its directors or
officers or such controlling person shall have the rights and
duties given to each Holder by the preceding paragraph. In no
event shall the liability of any selling Holder hereunder be
greater than the amount by which the total proceeds received by
such Holder upon the sale of the Transfer Restricted Securities
giving rise to such indemnification obligation exceeds the sum of
(A) the amount paid by such Holder for such Transfer Restricted
Securities plus (B) the amount of any damages which such Holder
has otherwise been required to pay by reason of a claim or action
based on such information.
(c) If the indemnification provided for in this Section 8
is unavailable to an indemnified party under Section 8(a) or
Section 8(b) hereof (other than by reason of exceptions provided
in those Sections) in respect of any Liabilities or Expenses
referred to therein, 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 Liabilities or Expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Issuer and the Company on the one hand and the Holders on the
other hand from their sale of Transfer Restricted Securities 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 Company and the
Issuer on the one hand and of the Indemnified Holder on the other
hand, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Issuer and
any Indemnified Holder shall be deemed to be in the same
proportion as (x) the total proceeds from the offering of the
Securities to the Initial Purchaser (net of discounts but before
deducting expenses) received by the Company and the Issuer and
(y) the total proceeds received by such Indemnified Holder upon
its sale of Transfer Restricted Services which otherwise would
give rise to the indemnification obligation, respectively. The
relative fault of the Company and the Issuer on the one hand and
of the Indemnified Holder on the other shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Company and the Issuer or by the Indemnified Holder and
the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Issuer and each Holder of Transfer
Restricted Securities agree that it would not be just and
equitable if contribution pursuant to this Section 8(c) were
determined by pro rata allocation (even if the Holders were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as
a result of the Liabilities and Expenses referred to in the
immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth in the second paragraph of
Section 8(a), any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with
investigating or defending any Action. Notwithstanding any other
provision of this Xxxxxxx 0, xxxx of the Holders (and its related
Indemnified Holders) shall be required to contribute, in the
aggregate, an amount in excess of the amount by which the total
proceeds received by such Holder with respect to the sale of its
Transfer Restricted Securities giving rise to such Liabilities or
Expenses exceeds the sum of (A) the amount paid by such Holder
for its Transfer Restricted Securities plus (B) the amount of any
damages which such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Holders' obligations to contribute pursuant to this Section 8(c)
are several in proportion to the principal amount of the Notes
held by each of the Holders hereunder and not joint.
SECTION 9. RULE 144A
The Company and the Issuer hereby agree with each Holder,
for so long as any Transfer Restricted Securities remain
outstanding, to make available to any Holder or beneficial owner
of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act in order to
effect resales of such Transfer Restricted Securities pursuant to
Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's
Transfer Restricted Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and
executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such underwriting
arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such
Transfer Restricted Securities in an Underwritten Offering. In
any such Underwritten Offering, the investment banker or
investment bankers and manager or managers (referred to herein as
"underwriters") that will administer the offering will be
selected by the Holders of a majority in aggregate principal
amount of the Transfer Restricted Securities included in such
offering.
SECTION 12. MISCELLANEOUS
(a) Remedies. Each Holder, in addition to being entitled
to exercise all rights provided herein, in the Indentures, the
Purchase Agreement or granted by law, including recovery of
liquidated or other damages, will be entitled to specific
performance of its rights under this Agreement. The Company and
the Issuer agree that a breach of any of the provisions of this
Agreement will cause irreparable injury to the Holders, that the
Holders have no adequate remedy by law in respect of such breach
and, as a consequence, that each and every provision contained in
this Agreement shall be specifically enforceable against the
Company and the Issuer, and the Company and the Issuer hereby
waive and agree not to assert as a defense to the request or
granting of specific performance of any such provision that any
breach of any such provision does not or would not cause
irreparable harm or is or would be compensable by an award of
money damages in respect of such breach.
(b) No Inconsistent Agreements. The Company and the Issuer
will not enter, on or after the date of this Agreement, into any
agreement with respect to its securities that would be
inconsistent with the rights granted to the Holders in this
Agreement or otherwise would conflict with the provisions hereof.
The Company and the Issuer previously have not entered into any
agreement granting any registration rights with respect to its
securities to any Person. The rights granted to the Holders
hereunder do not in any way conflict with and are not
inconsistent in any way with the rights granted to the holders of
the Company's and the Issuer's securities under any agreement in
effect on the date hereof.
(c) Adjustments Affecting the Securities. The Company and
the Issuer will not take any action, or permit any change to
occur, with respect to the Securities that would materially and
adversely affect the ability of the Holders to Consummate any
Exchange Offer.
(d) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and
waivers or consents to or departures from the provisions hereof
may not be given unless the Company and the Issuer have obtained
the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities.
Notwithstanding the foregoing, the Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities
being tendered or registered may give a waiver or consent to
departure from the provisions hereof, which waiver or consent
relates exclusively to the rights of Holders whose securities are
being tendered pursuant to the Exchange Offer and does not
directly or indirectly affect the rights of other Holders whose
securities are not being tendered pursuant to such Exchange
Offer.
(e) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-
delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier, or air courier
guaranteeing overnight delivery:
(i) if to a Holder, then at the address set forth on the
records of the Registrar under the Indentures, with a copy to
the Registrar under the Indentures; and
(ii) if to the Company or the Issuer then:
c/o Panda Energy International, Inc.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
With copies to:
Xxxxxxxxxx & Xxxxx LLP
0000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxxx X. Xxxxxx, Xx.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx, Compliance Department
All such notices and communications shall be deemed to have
been duly given as follows: (A) at the time delivered by hand,
if personally delivered; (B) five Business Days after being
deposited in the mail, postage prepaid, if mailed; (C) when
answered back, if telexed; (D) when receipt acknowledged, if
telecopied; and (E) on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications
shall be delivered con-currently to the Trustees, at the
addresses specified in the Indentures, by the Person giving the
same.
(f) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of
each of the parties, including without limitation and without the
need for an express assignment, subsequent Holders of Transfer
Restricted Securities; provided, however, that this Agreement
shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or
assign acquired Transfer Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the
other Operative Documents (as defined in the Purchase Agreement)
is intended by the parties as a final expression of their
agreement and 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. 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 Issuer with respect to the
Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with
respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
Panda Global Energy Company
By:
Name:
Title:
Panda Global Holdings, Inc.
By:
Name:
Title:
Accepted and agreed to as of
the date first above written:
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
By:
Name:
Title:
