EXHIBIT 4.4
EXECUTION VERSION
NEW ASAT (FINANCE) LIMITED
9.25% Senior Notes due 2011
REGISTRATION RIGHTS AGREEMENT
January 26, 2004
Citigroup Global Markets Limited
As Representative of the Initial Purchasers
Citigroup Centre, Canada Square
Xxxxx Xxxxx, Xxxxxx X00 00X
Xxxxxx Xxxxxxx
Ladies and Gentlemen:
New ASAT (Finance) Limited, an exempt company with limited liability under the
Companies Law (2003 Revision) of the Cayman Islands (the "Issuer"), proposes to
issue and sell to certain purchasers (the "Initial Purchasers"), for whom you
(the "Representatives") are acting as representatives, its U.S.$150 million
principal amount of 9.25% Senior Notes Due 2011 (the "Securities"), upon the
terms set forth in the Purchase Agreement among the Issuer, ASAT Holdings
Limited, an exempt company with limited liability under the Companies Law (2003
Revision) of the Cayman Islands ("Holdings"), certain of Holdings' direct and
indirect subsidiaries set forth therein and the Representatives, dated as of
January 16, 2004 (the "Purchase Agreement") relating to the initial placement
(the "Initial Placement") of the Securities. Pursuant to the Indenture and
subject to the limitations set forth therein, each of Holdings' current and
future direct and indirect subsidiaries shall agree to guarantee the securities
(Holdings and each such direct or indirect subsidiary issuing a guarantee, the
"Guarantors.") The Issuer and the Guarantors are referred to herein collectively
as the "Obligors." To the extent there are no additional Initial Purchasers
other than you, the terms Representatives and Initial Purchasers shall mean
either the singular or plural as the context requires. To induce the Initial
Purchasers to enter into the Purchase Agreement and to satisfy a condition to
your obligations thereunder, the Obligors agree with you for your benefit and
the benefit of the holders from time to time of the Securities (including the
Initial Purchasers) (each a "Holder" and, collectively, the "Holders"), as
follows:
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 capitalized defined terms shall have the
following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 405 under the Act
and the terms "controlling" and "controlled" shall have meanings correlative
thereto.
"Broker-Dealer" shall mean any broker or dealer registered as such
with the Commission under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City or Hong Kong.
"Closing Date" shall mean the date hereof.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Deferral Period" shall have the meaning indicated in Section 4(k)(ii)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" shall mean the 270-day period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration
statement of the Obligors on an appropriate form under the Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include any
Initial Purchaser) that is a Broker-Dealer and elects to exchange for New
Securities any Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from the
Obligor or any Affiliate of any Obligor) for New Securities.
"Final Memorandum" shall mean the offering memorandum, dated January
16, 2004 relating to the Securities, including any and all exhibits thereto and
any information incorporated by reference therein as of such date.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities, dated
as of the date hereof, among the Issuer, the Guarantors and The Bank of New
York, as trustee, as the same may be amended from time to time in accordance
with the terms thereof.
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
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"Initial Purchaser" shall have the meaning set forth in the preamble
hereto.
"Losses" shall have the meaning set forth in Section 6(d) hereof.
"Majority Holders" shall mean, on any date, Holders of a majority of
the aggregate principal amount of Transfer Restricted Notes registered under a
Registration Statement.
"Managing Underwriters" shall mean the investment banker or investment
bankers and manager or managers that administer an underwritten offering, if
any, under a Registration Statement.
"NASD Rules" shall mean the Conduct Rules and the By-Laws of the
National Association of Securities Dealers, Inc.
"New Securities" shall mean debt securities of the Issuer identical in
all material respects to the Securities (except that the transfer restrictions
shall be modified or eliminated, as appropriate and provisions regarding the
payment of Registration Default Damages by the Obligors shall be eliminated) to
be issued under the New Securities Indenture.
"New Securities Indenture" shall mean an indenture among the Issuer,
the Guarantors and the New Securities Trustee, identical in all material
respects to the Indenture (except that the transfer restrictions shall be
modified or eliminated, as appropriate and provisions regarding the payment of
Registration Default Damages by the Obligors shall be eliminated), which may be
the Indenture if in the terms thereof appropriate provision is made for the New
Securities.
"New Securities Trustee" shall mean a bank or trust company reasonably
satisfactory to the Initial Purchasers, as trustee with respect to the New
Securities under the New Securities Indenture.
"Prospectus" shall mean 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 under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or the New Securities covered by such
Registration Statement, and all amendments and supplements thereto, including
any and all exhibits thereto and any information incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" shall mean the proposed offer of the
Obligors to issue and deliver to the Holders of the Transfer Restricted Notes
who are not prohibited by any law or policy of the Commission from participating
in such offer, in exchange for the Transfer Restricted Notes, a like aggregate
principal amount of the New Securities.
"Registration Default Damages" shall have the meaning set forth in
Section 8 hereof.
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"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the New Securities pursuant to the provisions of this Agreement, any amendments
and supplements to such registration statement, including post-effective
amendments (in each case including the Prospectus contained therein), all
exhibits thereto and all material incorporated by reference therein.
"Securities" shall have the meaning set forth in the preamble hereto.
"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Obligors pursuant to the provisions of Section 3 hereof which
covers some or all of the Transfer Restricted Notes, on an appropriate form
under Rule 415 under the Act, or any similar rule that may be adopted by the
Commission, amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Transfer Restricted Note" means each Security and each New Security,
in each case upon the original issuance thereof and at all times subsequent
thereto until the earliest to occur of (A) the date on which such Security has
been exchanged by a person other than a Broker-Dealer for a New Security (other
than with respect to any Holder (other than an Initial Purchaser) that notifies
Holdings in writing that it may not resell the New Security to be acquired by it
in the Registered Exchange Offer to the public without delivering a prospectus
and the prospectus contained in the Exchange Offer Registration Statement cannot
be used for such resale by such Holder) pursuant to the Registered Exchange
Offer, (B) with respect to New Securities received by Broker- Dealers in the
Registered Exchange Offer the date on which such New Security has been sold by
such Broker-Dealer by means of the prospectus contained in the Exchange Offer
Registration Statement, (C) a Shelf Registration Statement covering such
Security or New Security, as the case may be, has been declared effective by the
Commission and such Security or New Security, as the case may be, has been
disposed of in accordance with and pursuant to such effective Shelf Registration
Statement, (D) such Security or New Security, as the case may be, is sold
pursuant to Rule 144 under circumstances in which the legend borne by such
Security or New Security relating to restrictions on transferability thereof,
under the Act or otherwise, is and is permitted to be removed by the Obligors
pursuant to the Indenture; or (E) the date on which such Security or New
Security, as the case may be, is eligible for distribution to the public without
volume or manner of sale restrictions pursuant to Rule 144(k).
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"underwriter" shall mean any underwriter of Securities in connection
with an offering thereof under a Shelf Registration Statement.
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2. Registered Exchange Offer. (a) The Obligors shall prepare and,
not later than 90 days following the Closing Date, shall file with the
Commission the Exchange Offer Registration Statement with respect to the
Registered Exchange Offer. The Obligors shall use their respective reasonable
efforts to cause the Exchange Offer Registration Statement to become effective
under the Act within 180 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Obligors shall promptly commence the Registered Exchange Offer.
(c) In connection with the Registered Exchange Offer, the Obligors
shall:
(i) after effectiveness of the Exchange Offer Registration
Statement, promptly mail to each Holder a copy of the final Prospectus
forming part of the Exchange Offer Registration Statement, together
with an appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than
20 Business Days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law);
(iii) use their respective reasonable efforts to keep the
Exchange Offer Registration Statement continuously effective under the
Act, supplemented and amended as required, under the Act to ensure
that it is available for sales of New Securities by Exchanging Dealers
during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee, the New Securities Trustee or an
Affiliate of either of them;
(v) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last Business
Day on which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer Registration
Statement, provide a supplemental letter to the Commission
substantially to the following effect: (A) stating that the Obligors
are conducting the Registered Exchange Offer in reliance on the
position of the Commission in Exxon Capital Holdings Corporation (pub.
avail. May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June
5, 1991) and other similar no-action letters; and (B) including a
representation that none of the Obligors has entered into any
arrangement or understanding with any person to distribute the New
Securities to be received in the Registered Exchange Offer and that,
to the best of the Obligors' information and belief, each Holder
participating in the Registered Exchange Offer is acquiring the New
Securities in the ordinary course of business and has no arrangement
or understanding with any person to participate in the distribution of
the New Securities; and
(vii) comply in all respects with all applicable laws.
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(d) As soon as practicable after the close of the Registered Exchange
Offer, the Obligors shall:
(i) accept for exchange all Securities validly tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance with
Section 4(s) all Securities so accepted for exchange; and
(iii) cause the New Securities Trustee promptly to authenticate
and deliver to each Holder of Securities a principal amount of New
Securities equal to the principal amount of the Securities of such
Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer
and any such Holder using the Registered Exchange Offer to participate in a
distribution of the New Securities (x) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the Commission in
Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Xxxxxx Xxxxxxx
and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission's
letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters;
and (y) must comply with the registration and prospectus delivery requirements
of the Act in connection with any secondary resale transaction, which must 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
under the Act if the resales are of New Securities obtained by such Holder in
exchange for Securities acquired by such Holder directly from the Obligors or
any of their Affiliates. Accordingly, each Holder participating in the
Registered Exchange Offer shall be required to represent in writing (which may
be contained in the applicable letter of transmittal for the Registered Exchange
Offer) to the Obligors that, at the time of the consummation of the Registered
Exchange Offer:
(i) any New Securities received by such Holder will be acquired
in the ordinary course of its business;
(ii) such Holder will have no arrangement or understanding with
any person to participate in the distribution of the Securities or the
New Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of any Obligor or if it is
an Affiliate, such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent
applicable;
(iv) if the Holder is not a Broker-Dealer, such Holder is not
engaged in, and does not intend to engage in, the distribution of the
New Securities; and
(v) if the Holder is a Broker-Dealer that it will receive New
Securities for its own account in exchange for the Securities that
were acquired as a result of market-making activities or other trading
activities and that it will be required to acknowledge that it will
deliver a prospectus in connection with any resale of such New
Securities.
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(f) If any Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange of
Securities constituting any portion of an unsold allotment, at the request of
such Initial Purchaser, the Obligors shall issue and deliver to such Initial
Purchaser or the person purchasing New Securities registered under a Shelf
Registration Statement as contemplated by Section 3 hereof from such Initial
Purchaser, in exchange for such Securities, a like principal amount of New
Securities, provided that such exchange is permitted by applicable law and the
policies of The Depository Trust Company. The Obligors shall use their
respective reasonable efforts to cause the CUSIP Service Bureau to issue the
same CUSIP number for such New Securities as for New Securities issued pursuant
to the Registered Exchange Offer.
3. Shelf Registration. (a) If (i) due to any change in applicable
interpretations thereof by the Commission's staff, the Obligors determine upon
advice of its outside counsel that they are not permitted to effect the
Registered Exchange Offer as contemplated by Section 2 hereof; or (ii) for any
other reason the Exchange Offer Registration Statement is not declared effective
within 180 days after the Closing Date or the Registered Exchange Offer is not
consummated within 215 days after the Closing Date; (iii) any Initial Purchaser
so requests with respect to Securities that are not eligible to be exchanged for
New Securities in the Registered Exchange Offer and that are held by it
following consummation of the Registered Exchange Offer; or (iv) any Holder of
Securities (other than an Initial Purchaser) notifies Holdings in writing that
(a) it is not eligible to participate in the Registered Exchange Offer or (b) it
may not resell the New Securities to be acquired by it in the Registered
Exchange Offer to the public without delivery of a prospectus and the prospectus
contained in the Exchange Offer Registration Statement could be used for such
resales by such Holder, the Obligors shall effect a Shelf Registration Statement
in accordance with subsection (b) below.
(b) (i) The Obligors shall as promptly as practicable (but in no
event more than 45 days after such filing obligation arises), file with the
Commission and shall use their respective reasonable efforts to cause to be
declared effective under the Act within 60 days after filing the Shelf
Registration Statement, a Shelf Registration Statement relating to the offer and
sale of Transfer Restricted Notes by the Holders thereof from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement; provided, however, that no Holder
(other than an Initial Purchaser) shall be entitled to have the Transfer
Restricted Note held by it covered by such Shelf Registration Statement unless
such Holder agrees in writing to be bound by all of the provisions of this
Agreement applicable to such Holder; and provided, further, that with respect to
New Securities received by an Initial Purchaser in exchange for Securities
constituting any portion of an unsold allotment, the Obligors may, if permitted
by current interpretations by the Commission's staff, file a post-effective
amendment to the Exchange Offer Registration Statement containing the
information required by Item 507 or 508 of Regulation S-K, as applicable, in
satisfaction of its obligations under this subsection with respect thereto, and
any such Exchange Offer Registration Statement, as so amended, shall be referred
to herein as, and governed by the provisions herein applicable to, a Shelf
Registration Statement.
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(ii) The Obligors shall use their respective reasonable efforts
to keep the Shelf Registration Statement continuously effective,
supplemented and amended as required by the Act, in order to permit
the Prospectus forming part thereof to be usable by Holders for a
period (the "Shelf Registration Period") from the date the Shelf
Registration Statement is declared effective by the Commission until
the earlier of (A) two years (or such shorter period as may be
established by an amendment to the two-year period set forth in Rule
144(k) under the Act) following the Closing Date and (B) the date
immediately following the date all Transfer Restricted Notes covered
by the Shelf Registration Statement cease to be Transfer Restricted
Notes. The Obligors shall be deemed not to have used their reasonable
efforts to keep the Shelf Registration Statement effective during the
Shelf Registration Period if any Obligor voluntarily takes any action
that would result in Holders of Transfer Restricted Notes, covered
thereby not being able to offer and sell such Transfer Restricted
Notes, at any time during the Shelf Registration Period, unless such
action is (x) required by applicable law or the Commission, (y)
otherwise undertaken by the Obligors in good faith and for valid
business reasons (not including avoidance of the Obligors' obligations
hereunder), including, without limitation, the acquisition or
divestiture of assets, and (z) permitted pursuant to Section 4(k)(ii)
hereof.
(iii) The Obligors shall cause the Shelf Registration Statement
and the related Prospectus and any amendment or supplement thereto, as
of the effective date of the Shelf Registration Statement or such
amendment or supplement, (A) to comply in all material respects with
the applicable requirements of the Act; and (B) not to contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading.
4. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Obligors shall:
(i) furnish to each of the Representatives and to counsel for
the Holders, not less than three Business Days prior to the filing
thereof with the Commission, a copy of any draft Exchange Offer
Registration Statement and any draft Shelf Registration Statement, and
each amendment thereof and each amendment or supplement, if any, to
the Prospectus included therein (including all documents incorporated
by reference therein after the initial filing) and shall use their
respective reasonable efforts to reflect in each such document, when
so filed with the Commission, such comments as the Representatives
reasonably propose;
(ii) include the information set forth in Annex A hereto on the
facing page of the Exchange Offer Registration Statement or on the
outside back cover page, in Annex B hereto in the forepart of the
Exchange Offer Registration Statement in a section setting forth
details of the Exchange Offer, in Annex C hereto in the underwriting
or plan of distribution section of the Prospectus contained in the
Exchange Offer Registration Statement, and in Annex D hereto in the
letter of transmittal delivered pursuant to the Registered Exchange
Offer to the extent permitted under the Act and by the SEC;
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(iii) if requested by an Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in the Prospectus contained in the Exchange Offer
Registration Statement to the extent permitted under the Act and by
the SEC; and
(iv) in the case of a Shelf Registration Statement, include the
names of the Holders that have provided the Selling Stockholder
Information within a reasonable time period after being requested to
so provide such information and that propose to sell Securities
pursuant to the Shelf Registration Statement as selling security
holders.
(b) The Obligors shall ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the Act; and
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, 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.
(c) The Obligors shall advise the Representatives, the Holders of
Transfer Restricted Notes covered by any Shelf Registration Statement and any
Exchanging Dealer under any Exchange Offer Registration Statement that has
provided in writing to Holdings a telephone or facsimile number and address for
notices, and, if requested by any Representative or any such Holder or
Exchanging Dealer, shall confirm such advice in writing (which notice pursuant
to clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the
use of the Prospectus until the Obligors shall have remedied the basis for such
suspension):
(i) when a Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose;
(iv) of the receipt by the Issuer of any notification with
respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose; and
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(v) of the happening of any event that requires any change in
the Registration Statement or the Prospectus so that, as of such date,
they (A) do not contain any untrue statement of a material fact and
(B) do not omit to state a material fact required to be stated therein
or necessary to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they were
made) not misleading.
(d) The Obligors shall use their respective reasonable efforts to
prevent the issuance of any order suspending the effectiveness of any
Registration Statement or the qualification of the securities therein for sale
in any jurisdiction and, if issued, to obtain as soon as possible the withdrawal
thereof.
(e) The Obligors shall furnish to each Holder of Transfer Restricted
Notes covered by any Shelf Registration Statement, without charge, at least one
copy of such Shelf Registration Statement and any post-effective amendment
thereto, including all material incorporated therein by reference, and, if the
Holder so requests in writing, all exhibits thereto (including exhibits
incorporated by reference therein).
(f) The Obligors shall, during the Shelf Registration Period, deliver
to each Holder of Transfer Restricted Notes covered by any Shelf Registration
Statement, without charge, as many copies of the Prospectus (including the
Preliminary Prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably request in
writing. The Obligors consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Transfer Restricted Notes
in connection with the offering and sale of the Transfer Restricted Notes
covered by the Prospectus, or any amendment or supplement thereto, included in
the Shelf Registration Statement.
(g) The Obligors shall furnish to each Exchanging Dealer which so
requests in writing, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including all
material incorporated by reference therein, and, if the Exchanging Dealer so
requests in writing, all exhibits thereto (including exhibits incorporated by
reference therein).
(h) The Obligors shall promptly deliver to each Initial Purchaser,
each Exchanging Dealer and each other person required to deliver a Prospectus
during the Exchange Offer Registration Period, without charge, as many copies of
the Prospectus included in such Exchange Offer Registration Statement and any
amendment or supplement thereto as any such person may reasonably request in
writing. The Obligors consent to the use of the Prospectus or any amendment or
supplement thereto by any Initial Purchaser, any Exchanging Dealer and any such
other person that may be required to deliver a Prospectus following the
Registered Exchange Offer in connection with the offering and sale of the
Transfer Restricted Notes covered by the Prospectus, or any amendment or
supplement thereto, included in the Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Transfer Restricted Notes pursuant to any Registration Statement, the Obligors
shall arrange, if necessary, for the qualification of the Transfer Restricted
Notes for sale under the laws of such jurisdictions as any Holder shall
reasonably request and shall maintain such qualification in effect so long as
required; provided that in no event shall the Obligors be obligated to qualify
to do business in any jurisdiction where it is not then so qualified or to take
any action that would subject it to service of process in suits, other than
those arising out of the Initial Placement, the Registered Exchange Offer or any
offering pursuant to a Shelf Registration Statement, in any such jurisdiction
where it is not then so subject.
(j) The Obligors shall cooperate with the Holders of Transfer
Restricted Notes to facilitate the timely preparation and delivery of
certificates representing New Securities or Securities to be issued or sold
pursuant to any Registration Statement free of any restrictive legends and in
such denominations and registered in such names as Holders may request.
(k) (i) Upon the occurrence of any event contemplated by
subsections (c)(ii) through (v) above, the Obligors shall promptly (or within
the time period provided for by clause (ii) hereof, if applicable) prepare a
post-effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to Initial Purchasers of the
securities included therein, the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In such circumstances,
the period of effectiveness of the Exchange Offer Registration Statement
provided for in Section 2 shall be extended by the number of days from and
including the date of the giving of a notice of suspension pursuant to Section
4(c) to and including the date (a) when the Obligors shall have mailed to the
Initial Purchasers, the Holders of the Securities and any known Exchanging
Dealer such amended or supplemented Prospectus pursuant to this Section, in the
event the Prospectus requires an amendment or supplement to terminate such
suspension or (b) in the event such suspension is terminated other than by
amending or supplementing the Prospectus, when such suspension shall have been
terminated and the Holders shall have been so notified in writing by the
Obligors.
(ii) Upon the occurrence or existence of any pending corporate
development or any other material event that, in the reasonable
judgment of the Obligors, makes it appropriate to suspend the
availability of a Shelf Registration Statement and the related
Prospectus, the Obligors shall cause the issuance of a notice (without
notice of the nature or details of such events) to the Holders that
the availability of the Shelf Registration is suspended and, upon
actual receipt of any such notice, each Holder agrees not to sell any
Transfer Restricted Notes pursuant to the Shelf Registration until
such Holder's receipt of copies of the supplemented or amended
Prospectus provided for in Section 4(k) (i) hereof, or until it is
advised in writing by the Issuer that the Prospectus may be used, and
the Obligors shall have mailed to such Holders any additional or
supplemental filings that are incorporated or deemed incorporated by
reference in such Prospectus. The period during which the availability
of the Shelf Registration and any Prospectus is suspended (the
"Deferral Period") shall not exceed 45 days in any three-month period
or 90 days in any twelve-month period.
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(l) Not later than the effective date of any Registration Statement,
the Obligors shall provide a CUSIP number for the Securities or the New
Securities, as the case may be, registered under such Registration Statement and
provide the Trustee with printed certificates for such Securities or New
Securities, in a form eligible for deposit with The Depository Trust Company.
(m) The Obligors shall comply with all applicable rules and
regulations of the Commission and shall make generally available to its security
holders an earnings statement satisfying the provisions of Section 11(a) of the
Act as soon as practicable after the effective date of the applicable
Registration Statement and in any event no later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal year) beginning with the
first month of the Holdings' first fiscal quarter commencing after the effective
date of the applicable Registration Statement.
(n) The Obligors shall cause the New Securities Indenture to be
qualified under the Trust Indenture Act in a timely manner.
(o) The Obligors may require each Holder of Transfer Restricted Notes
to be sold pursuant to any Shelf Registration Statement to furnish in writing to
the Obligors such information regarding the Holder and the distribution of such
securities as the Obligors may from time to time reasonably require for
inclusion in such Registration Statement (the "Selling Stockholder
Information"). The Obligors shall use reasonable efforts to contact each Holder
and solicit such information. The Obligors may exclude from such Shelf
Registration Statement the Transfer Restricted Notes of any Holder that
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
(p) In the case of any Shelf Registration Statement, the Obligors
shall enter into customary agreements (including, if requested, an underwriting
agreement in customary form), including without limitation customary indemnity
contribution provisions and take all other appropriate actions in order to
expedite or facilitate the registration or the disposition of the Securities,
and in connection therewith, if an underwriting agreement is entered into, cause
the same to contain indemnification provisions and procedures no less favorable
than those set forth in Section 6 hereof. If an underwriting agreement is
entered into, the commissions and expenses of any underwriter shall be borne by
the Holders selling Securities pursuant to such underwriting agreement and not
by the Obligors.
(q) In the case of any Shelf Registration Statement, the Obligors
shall:
(i) subject to the execution of reasonable and customary
confidentiality agreements (provided such execution shall not affect
the Obligors' obligations with respect to the accuracy and
completeness of such Shelf Registration Statement) make reasonably
available for inspection by the Holders of Transfer Restricted Notes
to be registered thereunder, any underwriter participating in any
disposition pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by the Holders or any such
underwriter all relevant financial and other records and pertinent
corporate documents of the Obligors and their subsidiaries;
11
(ii) subject to the execution of reasonable and customary
confidentiality agreement (provided such execution shall not affect
the Obligor's obligations with respect to the accuracy and
completeness of such Shelf Registration Statement) cause the officers,
directors, employees, accountants and auditors of any Obligor to
supply all relevant information reasonably requested by the Holders or
any such underwriter, attorney, accountant or agent in connection with
any such Registration Statement as is customary for similar due
diligence examinations;
(iii) make such representations and warranties to the Holders of
Transfer Restricted Notes registered thereunder and the underwriters,
if any, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings of non-convertible
debt securities and addressing such matters including, but not limited
to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Obligors and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters, if any)
addressed to each selling Holder and the underwriters, if any,
covering such matters as are customarily covered in opinions requested
in underwritten offerings of non-convertible debt securities;
(v) obtain "comfort" letters and updates thereof from the
independent certified public accountants of the Obligors (and, if
necessary, any other independent certified public accountants of any
subsidiary of any Obligor or of any business acquired by any Obligor
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to each
selling Holder of Transfer Restricted Notes registered thereunder and
the underwriters, if any, in customary form and covering matters of
the type customarily covered in "comfort" letters in connection with
underwritten offerings of non-convertible debt securities; and
(vi) deliver such documents and certificates as may be timely
and reasonably requested by the Majority Holders or the Managing
Underwriters, if any, including those to evidence compliance with
Section 4(k) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by an Obligor
of non-convertible debt securities.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this paragraph (q)
shall be performed at (A) the effectiveness of such Shelf Registration Statement
and each post-effective amendment thereto; and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
12
(r) In the case of any Exchange Offer Registration Statement, the
Obligors shall, if requested by an Initial Purchaser, or by a Broker-Dealer that
holds Transfer Restricted Securities that were acquired as a result of market
making or other trading activities:
(i) subject to the execution of reasonable and customary
confidentiality agreement (provided such execution shall not affect
the Obligor's obligations with respect to the accuracy and
completeness of such Exchange Offer Registration Statement) make
reasonably available for inspection by the requesting party, and any
attorney, accountant or other agent retained by the requesting party,
all relevant financial and other records, pertinent corporate
documents and properties of the Obligors and their subsidiaries;
(ii) subject to the execution of reasonable and customary
confidentiality agreement (provided such execution shall not affect
the Obligor's obligations with respect to the accuracy and
completeness of such Exchange Offer Registration Statement) cause the
officers, directors, employees, accountants and auditors of any
Obligor to supply all relevant information reasonably requested by the
requesting party or any such attorney, accountant or agent in
connection with any such Registration Statement as is customary for
similar due diligence examinations;
(iii) make such representations and warranties to the requesting
party, in form, substance and scope as are customarily made by issuers
to underwriters in underwritten offerings of non-convertible debt
securities and addressing matters including, but not limited to, those
set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Obligors and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the requesting party and its
counsel, addressed to the requesting party, covering such matters as
are customarily covered in opinions requested in underwritten
offerings of non-convertible debt securities;
(v) obtain "comfort" letters and updates thereof from the
independent certified public accountants of the Obligors (and, if
necessary, any other independent certified public accountants of any
subsidiary of any Obligor or of any business acquired by an Obligor
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to the
requesting party, in customary form and covering matters of the type
customarily covered in "comfort" letters in connection with
underwritten offerings of non-convertible debt securities, or if
requested by the requesting party or its counsel in lieu of a
"comfort" letter, an agreed-upon procedures letter under Statement on
Auditing Standards No. 35, covering matters requested by the
requesting party or its counsel; and
(vi) deliver such documents and certificates as may be timely
and reasonably requested by the requesting party or its counsel,
including those to evidence compliance with Section 4(k) and with
conditions customarily contained in underwriting agreements of
non-convertible debt securities.
13
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section shall be performed at the close of the Registered Exchange Offer and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(s) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Obligors (or to such other person
as directed by the Issuer) in exchange for the New Securities, the Obligors
shall xxxx, or caused to be marked, on the Securities so exchanged that such
Securities are being cancelled in exchange for the New Securities; provided,
however, if the procedures of the Depository Trust Company ("DTC") with respect
to the Securities held in global form conflict with the procedures set forth in
this Section 4(s), compliance by the Obligors with such DTC procedures shall not
breach nor be deemed a breach of this Section 4(s). In no event shall the
Securities subject to the exchange be marked as paid or otherwise satisfied.
(t) The Obligors shall use their respective reasonable efforts if the
Securities have been rated prior to the initial sale of such Securities, to
confirm such ratings will apply to the Securities or the New Securities, as the
case may be, covered by a Registration Statement.
(u) In the event that any Broker-Dealer shall underwrite any
Securities or participate as a member of an underwriting syndicate or selling
group or "assist in the distribution" (within the meaning of the NASD Rules)
thereof, whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or otherwise,
the Obligors shall assist such Broker-Dealer in complying with the NASD Rules.
(v) The Obligors shall use their reasonable efforts to take all other
steps necessary to effect the registration of the Securities or the New
Securities, as the case may be, covered by a Registration Statement.
5. Registration Expenses. The Obligors shall bear all expenses
incurred in connection with the performance of its obligations under Sections 2,
3 and 4 hereof and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable fees and disbursements of one firm or
counsel (which shall initially be Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, but
which may be another nationally recognized law firm experienced in securities
matters designated by the Majority Holders) to act as counsel for the Holders in
connection therewith, and, in the case of any Exchange Offer Registration
Statement, will reimburse the Initial Purchasers for the reasonable fees and
disbursements of counsel acting in connection therewith.
6. Indemnification and Contribution. (a) Each Obligor agrees,
jointly and severally, to indemnify and hold harmless each Holder of Securities
or New Securities, as the case may be, covered by any Registration Statement,
each Initial Purchaser and, with respect to any Prospectus delivery as
contemplated in Section 4(h) hereof, each Exchanging Dealer, the directors,
officers, employees, Affiliates and agents of each such Holder, Initial
Purchaser or
14
Exchanging Dealer and each person who controls any such Holder, Initial
Purchaser or Exchanging Dealer within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or in any preliminary
Prospectus or the Prospectus, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of any preliminary Prospectus or the Prospectus,
in the light of the circumstances under which they were made) not misleading,
and agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Obligors will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to any Obligor by or on behalf of any party claiming indemnification
specifically for inclusion therein. This indemnity agreement shall be in
addition to any liability that any Obligor may otherwise have.
Each Obligor agrees, jointly and severally, to indemnify as provided
in this Section 6(a) or contribute as provided in Section 6(d) hereof to Losses
of each underwriter, if any, of Securities or New Securities, as the case may
be, registered under a Shelf Registration Statement, their directors, officers,
employees, Affiliates or agents and each person who controls such underwriter on
substantially the same basis as that of the indemnification of the Initial
Purchasers and the selling Holders provided in this Section 6(a) and shall, if
requested by the Holder, enter into an underwriting agreement reflecting such
agreement, as provided in Section 4(p) hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser that is a Holder, in such capacity) severally
and not jointly agrees to indemnify and hold harmless the Obligors, each of
their respective directors, each of their respective officers who signs such
Registration Statement and each person who controls the Obligors within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Obligors to each such Holder, but only with
reference to written information relating to such Holder furnished to the
Obligors by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability that any such Holder may otherwise have.
15
(c) Promptly after receipt by an indemnified party under this Section
6 or notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses or if the indemnifying
party has been materially prejudiced by such failure; and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel (including
local counsel) of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel,
other than local counsel if not appointed by the indemnifying party, retained by
the indemnified party or parties except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel (including
local counsel) to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action; or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. The indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) at any time for
all indemnified parties. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
16
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have a joint and several obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending any loss, claim,
liability, damage or action) (collectively "Losses") to which such indemnified
party may be subject in such proportion as is appropriate to reflect the
relative benefits received by such indemnifying party, on the one hand, and such
indemnified party, on the other hand, from the Initial Placement and the
Registration Statement which resulted in such Losses; provided, however, that in
no case shall any Initial Purchaser be responsible, in the aggregate, for any
amount in excess of the purchase discount or commission applicable to such
Security, or in the case of a New Security, applicable to the Security that was
exchangeable into such New Security, as set forth in the Final Memorandum, nor
shall any underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the securities purchased by
such underwriter under the Registration Statement which resulted in such Losses.
If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on the
one hand, and such indemnified party, on the other hand, in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Obligors shall be
deemed to be equal to the total net proceeds from the Initial Placement (before
deducting expenses) as set forth in the Final Memorandum. Benefits received by
the Initial Purchasers shall be deemed to be equal to the total purchase
discounts and commissions as set forth on the cover page of the Final
Memorandum, and benefits received by any other Holders shall be deemed to be
equal to the value of receiving Securities or New Securities, as applicable,
registered under the Act. Benefits received by any underwriter shall be deemed
to be equal to the total underwriting discounts and commissions, as set forth on
the cover page of the Prospectus forming a part of the Registration Statement
which resulted in such Losses. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The parties agree that it would not be just
and equitable if contribution were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls an Obligor
within the meaning of either the Act or the Exchange Act, each officer of an
Obligor who shall have signed the Registration Statement and each director of an
Obligor shall have the same rights to contribution as such Obligor, subject in
each case to the applicable terms and conditions of this paragraph (d). The
Initial Purchasers' obligations to contribute as provided in this Section 6(d)
are several in proportion to their respective underwriting obligations and not
joint.
(e) The provisions of this Section will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Obligors or any of the indemnified persons referred to in this Section 6,
and will survive the sale by a Holder of securities covered by a Registration
Statement.
7. Underwritten Registrations. (a) If any of the Transfer Restricted
Notes covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the Managing Underwriters shall be selected by the
Majority Holders.
(b) No person may participate in any underwritten offering pursuant
to any Shelf Registration Statement, unless such person (i) agrees to sell such
person's Transfer Restricted Notes on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements; and (ii) timely completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
17
8. Registration Defaults. If any of the following events shall
occur, then the Obligors shall pay liquidated damages (the "Registration Default
Damages") to the Holders as follows:
(a) if any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the date specified for such filing in
this Agreement, then Registration Default Damages shall accrue on the Transfer
Restricted Notes at a rate of 0.25% per annum for the first 90-day period from
and including such specified date. The Registration Default Damages shall
increase by an additional 0.25% per annum with respect to each subsequent 90-day
period until the default set forth in this Section 8(a) shall have been cured,
up to a maximum of 1.0% per annum; or
(b) if any Registration Statement required by this Agreement is not
declared effective by the Commission on or prior to the date by which reasonable
efforts are to be used to cause such effectiveness under this Agreement, then
commencing on the day after such specified date, Registration Default Damages
shall accrue on the Transfer Restricted Notes at a rate of 0.25% per annum for
the first 90-day period from and including such specified date. The Registration
Default Damages shall increase by an additional 0.25% per annum with respect to
each subsequent 90-day period until the default set forth in this Section 8(b)
shall have been cured, up to a maximum of 1.0% per annum;
(c) if on or prior to the 215th day following the Closing Date,
neither the Registered Exchange Offer has been consummated nor the Shelf
Registration Statement has been declared effective, then commencing on the day
after such specified date, Registration Default Damages shall accrue on the
Transfer Restricted Notes at a rate of 0.25% per annum for the first 90-day
period from and including such specified date. The Registration Default Damages
shall increase by an additional 0.25% per annum with respect to each subsequent
90-day period until the default set forth in this Section 8(c) shall have been
cured, up to a maximum of 1.0% per annum; or
(d) if any Registration Statement required by this Agreement has been
declared effective but ceases to be effective at any time at which it is
required to be effective under this Agreement, then commencing on the day the
Registration Statement ceases to be effective, Registration Default Damages
shall accrue on the Transfer Restricted Notes at a rate of 0.25% per annum for
the first 90-day period from and including such specified date. The Registration
Default Damages shall increase by an additional 0.25% per annum with respect to
each subsequent 90-day period until the default set forth in this Section 8(d)
shall have been cured, up to a maximum of 1.0% per annum;
provided, however, that (1) upon the filing of the Registration Statement (in
the case of Section 8(a) above), (2) upon the effectiveness of the Registration
Statement (in the case of Section 8(b) above), (3) upon the consummation of the
Registered Exchange Offer or the Shelf Registration Statement is declared
effective, in each case following the 215th day after the Closing Date (in the
case of Section 8(c) above) or (4) upon the effectiveness of the Registration
Statement which had ceased to remain effective (in the case of Section 8(d)
above), Registration Default Damages shall cease to accrue; provided, further,
the Obligors will not pay Registration Default Damages with respect to more than
one default set forth in Section 8(a), (b), (c) or (d), and, provided, further,
to the extent the Obligors have reasonably requested Selling Stockholder
Information from a Holder of Securities or New Securities in connection with the
preparation and submission of a Shelf Registration Statement and such Holder has
not provided the Obligors such Selling Stockholder Information within a
reasonable time after receiving the Obligors' request, such Holder shall have no
right to seek Registration Default Damages that may accrue as a result of a
default of the Obligors relating to such Shelf Registration Statement.
18
9. No Inconsistent Agreements. The Obligors have not entered into,
and each of them agrees not to enter into, any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders herein or
that otherwise conflicts with the provisions hereof.
10. Amendments and Waivers. The provisions of this Agreement may not
be amended, qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Obligors have
obtained the written consent of the Holders of a majority of the aggregate
principal amount of the Transfer Restricted Notes outstanding; provided that,
with respect to any matter that directly affects the rights of any Initial
Purchaser (in its capacity as Initial Purchaser and not in its capacity as a
Holder) hereunder, the Obligors shall obtain the written consent of each such
Initial Purchaser against which such amendment, qualification, supplement,
waiver or consent is to be effective; provided, further, that no amendment,
qualification, supplement, waiver or consent with respect to Section 8 hereof
shall be effective as against any Holder of Registered Securities unless
consented to in writing by such Holder; and provided, further, that the
provisions of this Article 10 may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Obligors have obtained the written consent of the
Initial Purchasers and each Holder. Notwithstanding the foregoing (except the
foregoing provisos), a waiver or consent to departure from the provisions hereof
with respect to a matter that relates exclusively to the rights of Holders whose
Securities or New Securities, as the case may be, are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Holders of a majority of the
aggregate principal amount of Securities or New Securities, as the case may be,
being sold rather than registered under such Registration Statement.
11. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such holder
to the Issuer in accordance with the provisions of this Section 11, which
address initially is, with respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture;
19
(b) if to the Representatives, initially at the address or addresses
set forth in the Purchase Agreement; and
(c) if to any of the Obligors, initially at its address set forth in
the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Initial Purchasers or the Obligors by notice to the other parties
may designate additional or different addresses for subsequent notices or
communications.
12. Remedies. Each Holder, in addition to being entitled to exercise
all rights provided to it herein, in the Indenture or in the Purchase Agreement
or granted by law will be entitled to specific performance of its rights under
this Agreement. The Obligors agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive in any action for specific
performance the defense that a remedy at law would be adequate.
13. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective successors and assigns,
including, without the need for an express assignment or any consent by the
Obligors thereto, subsequent Holders of Securities and the New Securities, and
the indemnified persons referred to in Section 6 hereof. The Obligors hereby
agree to extend the benefits of this Agreement to any Holder of Securities and
the New Securities, and any such Holder may specifically enforce the provisions
of this Agreement as if an original party hereto.
14. Jurisdiction. Each Obligor agrees that any suit, action or
proceeding against such Obligor brought by any Holder or Initial Purchaser, the
directors, officers, employees, Affiliates and agents of any Holder or Initial
Purchaser, or by any person who controls any Holder or Initial Purchaser,
arising out of or based upon this Agreement or the transactions contemplated
hereby may be instituted in any State or U.S. federal court in The City of New
York and County of New York, and waives any objection which it may now or
hereafter have to the laying of venue of any such proceeding, and irrevocably
submits to the non-exclusive jurisdiction of such courts in any suit, action or
proceeding. The Obligors hereby appoint CT Corporation System as their
authorized agent (the "Authorized Agent") upon whom process may be served in any
suit, action or proceeding arising out of or based upon this Agreement or the
transactions contemplated herein which may be instituted in any State or U.S.
federal court in The City of New York and County of New York, by any Holder or
Initial Purchaser, the directors, officers, employees, Affiliates and agents of
any Holder or Initial Purchaser, or by any person who controls any Holder or
Initial Purchaser, and expressly accepts the non-exclusive jurisdiction of any
such court in respect of any such suit, action or proceeding. Each Obligor
hereby represents and warrants that the Authorized Agent has accepted such
appointment and has agreed to act as said agent for service of process, and the
Obligors agree to take any and all action, including the filing of any and all
documents that may be necessary to continue such appointment in full force and
effect as aforesaid. Service of process upon the Authorized Agent shall be
deemed, in every respect, effective service of process upon each Obligor. The
Obligors further agree to take any and all action, including the execution and
filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment in full force and effect so long as
any of the Securities shall be outstanding. Notwithstanding the foregoing, any
action arising out of or based upon this Agreement may be instituted against an
Obligor by any Holder or Initial Purchaser, the directors, officers, employees,
Affiliates and agents of any Holder or Initial Purchaser, or by any person who
controls any Holder or Initial Purchaser, in any court of competent jurisdiction
in the jurisdiction of incorporation of such Obligor. The parties hereto each
hereby waive any right to trial by jury in any action, proceedings or
counterclaim arising out of or relating to this Agreement.
20
15. Currency. Each reference in this Agreement to U.S. dollars (the
"relevant currency") is of the essence. To the fullest extent permitted by law,
the obligation of the Obligors or the Initial Purchasers, as the case may be, in
respect of any amount due under this Agreement will, notwithstanding any payment
in any other currency (whether pursuant to a judgment or otherwise), be
discharged only to the extent of the amount in the relevant currency that the
party entitled to receive such payment may, in accordance with its normal
procedures, purchase with the sum paid in such other currency (after any premium
and costs of exchange) on the Business Day immediately following the day on
which such party receives such payment. If the amount in the relevant currency
that may be so purchased for any reason falls short of the amount originally
due, the Obligors or the Initial Purchasers, as the case may be, will pay such
additional amounts, in the relevant currency, as may be necessary to compensate
for the shortfall. If the amount in the relevant currency that may be so
purchased for any reason exceeds the amount originally due, the Obligors or the
Initial Purchasers, as the case may be, will return such excess amount, in the
relevant currency, to the party that paid such amounts. Any obligation of the
Obligors or the Initial Purchasers, as the case may be, not discharged by such
payment will, to the fullest extent permitted by applicable law, be due as a
separate and independent obligation and, until discharged as provided herein,
will continue in full force and effect.
16. Waiver of Immunity. To the extent that the Obligors or an Initial
Purchaser have or hereafter may acquire any immunity (sovereign or otherwise)
from any legal action, suit or proceeding, from jurisdiction of any court or
from set-off or any legal process (whether service or notice, attachment in aid
or otherwise) with respect to itself or any of its property, the Obligors or
such Initial Purchasers, as the case may be, hereby irrevocably waive and agree
not to plead or claim such immunity in respect of their obligations under this
Agreement.
17. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
18. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
19. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed in the State of New York. The parties hereto each
hereby waive any right to trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Agreement.
20. Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
21. Securities Held by the Issuer, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or New Securities is required hereunder, Securities or New Securities, as
applicable, held by any Obligor or their respective Affiliates (other than
subsequent Holders of Securities or New Securities if such subsequent Holders
are deemed to be Affiliates solely by reason of their holdings of such
Securities or New Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
21
22. Obligations of Holdings. Notwithstanding anything herein to the
contrary, Holdings shall have no obligations under this Agreement to the extent
(i) it is not permitted to have such obligations under Section 4.20 of the
Indenture by and among ASAT (Finance) LLC, Holdings, certain subsidiaries of
Holdings a party thereto and U.S. Bank National Association (as successor to
JPMorgan Chase Bank), as trustee, dated as of October 29, 1999 relating to the
issuance of the 12 1/2 Senior Notes due 2006 and (ii) Section 4.20 of such
Indenture then remains in effect.
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among each
of the Obligors and the several Initial Purchasers.
Very truly yours,
New ASAT (Finance) Limited
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
ASAT Holdings Limited
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
ASAT Limited
The COMMON SEAL of )
ASAT LIMITED ) /s/ Xxxxxx Xxxx
was hereunto affixed ) --------------------------------------
in the presence of: ) Name: Xxxxxx Xxxx
Title: Director
Xxxxxxxx Limited
The COMMON SEAL of )
XXXXXXXX LIMITED ) /s/ Xxxxxx Xxxx
was hereunto affixed ) --------------------------------------
in the presence of: ) Name: Xxxxxx Xxxx
Title: Director
/s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
ASAT, Inc.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
23
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
Citigroup Global Markets Limited
By /s/ Xxxxxx Xxxx
-------------------------------------
Name: Xxxxxx Xxxx
Title: Director
For itself and the other several Initial
Purchasers named in Schedule I to the
Purchase Agreement.
24
ANNEX A
Each broker-dealer that receives new securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus meeting the requirement of the Act in connection with any resale of
such new securities. The Letter of Transmittal states that by so acknowledging
and by delivering a prospectus, a broker-dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Act. This prospectus, as it may
be amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of new securities received in exchange for securities
where such securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Obligors have agreed
that, starting on the expiration date and ending on the close of business 270
days after the expiration date, they will make this prospectus available to any
broker-dealer for use in connection with any such resale. See "Plan of
Distribution".
ANNEX B
Each broker-dealer that receives new securities for its own account in
exchange for securities, where such securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such new securities. See "Plan of Distribution".
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives new securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus meeting the requirements of the Act in connection with any resale of
such new securities. This prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of new
securities received in exchange for securities where such securities were
acquired as a result of market-making activities or other trading activities.
The Issuer has agreed that, starting on the expiration date and ending on the
close of business 270 days after the expiration date of the exchange offer, it
will make this prospectus, as amended or supplemented, available to any
broker-dealer for use in connection with any such resale. In addition, until
__________, ______, all dealers effecting transactions in the new securities may
be required to deliver a prospectus.
The Issuer will not receive any proceeds from any sale of new
securities by brokers-dealers. New securities received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the new securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such new
securities. Any broker-dealer that resells new securities that were received by
it for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such new securities may be deemed to be
an "underwriter" within the meaning of the Act and any profit of any such resale
of new securities and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Act. The Letter
of Transmittal states that by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Act.
For a period of 270 days after the expiration date, the Issuer will
promptly send additional copies of this prospectus and any amendment or
supplement to this prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Issuer has agreed to pay all expenses incident
to the Exchange Offer (including the expenses of one counsel for the holder of
the securities) other than commissions or concessions of any brokers or dealers
and will indemnify the holders of the securities (including any broker-dealers)
against certain liabilities, including liabilities under the Act.
ANNEX D
Rider A
-------
PLEASE FILL IN YOUR NAME AND ADDRESS BELOW IF YOU ARE A BROKER-DEALER AND WISH
TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
------------------------------
Address:
------------------------------
------------------------------
Rider B
-------
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any person to participate in a
distribution of the New Securities. If the undersigned is a Broker-Dealer that
will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchange for New Securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
