EXHIBIT 4.4
XXXXXX XXXXX COMMAND COMPANY
8.125% Senior Notes Due 2008
Guaranteed on an Unsecured Senior Subordinated basis by
XXXXXX XXXXX CORP.
REGISTRATION AGREEMENT
New York, New York
April 2, 1998
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
Xxxxxx Xxxxx Command Company, a Nova Scotia unlimited liability
company (the "Company"), proposes to issue and sell ("the "Initial Placement")
to certain purchasers (the "Purchasers"), upon the terms set forth in a purchase
agreement of even date herewith (the "Purchase Agreement"), $135,000,000
aggregate principal amount of its 8.125% Senior Notes due 2008 (the
"Securities") which will be guaranteed on an unsecured senior subordinated basis
by Xxxxxx Xxxxx Corp., a Pennsylvania corporation ("Xxxxxx Xxxxx Corp."). The
Company is a Wholly Owned Subsidiary (as defined in the Indenture) of Xxxxxx
Xxxxx Corp. As an inducement to the Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to your obligations thereunder, the
Company agrees with you, (i) for your benefit and the benefit of the other
Purchasers and (ii) for the benefit of the holders from time to time of
Registrable Securities (including you and the other Purchasers) (each of the
foregoing a "Holder" and together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition
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which are defined in the Purchase Agreement 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" means the Securities Act of 1933, as amended, and the rules and
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regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person which,
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directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control
of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Closing Date" has the meaning set forth in the Purchase Agreement.
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"Commission" means the Securities and Exchange Commission.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" means the six month period
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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" means a registration statement
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of the Company 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, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Exchanging Dealer" means any Holder (which may include the
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Purchasers) which is a broker-dealer, electing to exchange Securities acquired
for its own account as a result of market-making activities or other trading
activities, for New Securities.
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"Final Memorandum" has the meaning set forth in the Purchase
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Agreement.
"Holder" has the meaning set forth in the preamble hereto.
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Indenture" means the Indenture relating to the Securities dated as of
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April 7, 1998, between the Company, Xxxxxx Xxxxx Corp. 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" has the meaning set forth in the preamble hereto.
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"Majority Holders" means the Holders of a majority of the aggregate
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principal amount of securities registered under a Registration Statement.
"Managing Underwriters" means the investment banker or investment
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bankers and manager or managers that shall administer an underwritten offering.
"New Securities" means debt securities of the Company identical in all
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material respects to the Securities (except that the cash interest and interest
rate step-up provisions and the transfer restrictions will be modified or
eliminated, as appropriate), to be issued under the Indenture or the New
Securities Indenture.
"New Securities Indenture" means an indenture between the Company and
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the New Securities Trustee, identical in all material respects with the
Indenture (except that the cash interest and interest rate step-up provisions
and the transfer restrictions will be modified or eliminated, as appropriate,
and other than such changes as are required to comply with any requirements of
the Commission).
"New Securities Trustee" means a bank or trust company reasonably
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satisfactory to the Purchasers, as trustee with respect to the New Securities
under the New Securities Indenture, it being agreed, without limiting the
foregoing, that The Bank of New York is satisfactory to serve as such trustee.
"Xxxxxx Xxxxx Corp." has the meaning set forth in the preamble hereto.
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"Prospectus" means the prospectus included in any Registration
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Statement (including, without limitation, a prospectus that discloses
information
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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 to the Prospectus, including post-
effective amendments.
"Registered Exchange Offer" means the proposed offer to the Holders to
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issue and deliver to such Holders, in exchange for the Securities, a like
principal amount of the New Securities.
"Registrable Securities" means (a) the Securities upon original
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issuance thereof and at all times subsequent thereto until, (i) a Registration
Statement covering such Securities has been declared effective by the Commission
and such Securities have been disposed of in accordance with such Registration
Statement, (ii) such Securities are sold in compliance with Rule 144, (iii) the
Registered Exchange Offer has been consummated with respect to all Securities
validly tendered in accordance with the Registered Exchange Offer, (iv) such
Securities cease to be outstanding or (v) two years have passed from the Issue
Date or (b) New Securities held by a Purchaser under the circumstances set forth
in clause (v) of the first paragraph of Section 3 until (i) a Registration
Statement covering such New Securities has been declared effective by the
Commission and such New Securities have been disposed of in accordance with such
Registration Statement, (ii) such New Securities are sold in compliance with
Rule 144, (iii) such New Securities cease to be outstanding or (iv) two years
have passed from the Issue Date.
"Registration Statement" means any Exchange Offer Registration
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Statement or Shelf Registration Statement that covers any of the Securities or
the New Securities pursuant to the provisions of this Agreement, 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" has the meaning set forth in the preamble hereto.
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"Shelf Registration" means a registration effected pursuant to Section
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3 hereof.
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"Shelf Registration Period" has the meaning set forth in Section 3(b)
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hereof.
"Shelf Registration Statement" means a "shelf" registration statement
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of the Company pursuant to the provisions of Section 3 hereof which covers some
or all of the Securities or New Securities, as applicable, 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.
"Trustee" means the trustee with respect to the Securities under the
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Indenture.
"underwriter" means any underwriter of Securities in connection with
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an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer; Resales of New Securities by
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Exchanging Dealers; Private Exchange.
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(a) The Company 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 Company shall use its best 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 Company shall promptly commence the Registered Exchange
Offer, it being the objective of such Registered Exchange Offer to enable
each Holder electing to exchange Securities for New Securities (assuming
that such Holder is not an affiliate of the Company within the meaning of
the Act, acquires the New Securities in the ordinary course of such
Holder's business and has no arrangements with any person to participate in
the distribution of the New Securities) to trade such New Securities from
and after their receipt without any limitations or restrictions under the
Act and without material restrictions under the securities laws of a
substantial proportion of the several states of the United States.
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(c) In connection with the Registered Exchange Offer, the Company
shall use its best efforts to :
(i) mail to each Holder a copy of the 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
30 days and not more than 45 days after the date notice thereof is
mailed to the Holders (or longer if required by applicable law);
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City
of New York; and
(iv) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
(i) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
(iii) cause the Trustee or the New Securities Trustee, as the
case may be, promptly to authenticate and deliver to each Holder whose
Securities have been accepted for exchange New Securities equal in
principal amount to the Securities of such Holder so accepted for
exchange.
(e) The Purchasers and the Company acknowledge that, pursuant to
interpretations by the Commission's staff of Section 5 of the Act, and in
the absence of an applicable exemption therefrom, each Exchanging Dealer is
required to deliver a Prospectus in connection with a sale of any New
Securities received by such Exchanging Dealer pursuant to the Registered
Exchange Offer in exchange for Securities acquired for its own account as a
result of
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market-making activities or other trading activities. Accordingly, the
Company shall:
(i) include information of the type set forth (A) in Annex A
hereto on the cover of the Exchange Offer Registration Statement, (B)
in Annex B hereto in the forepart of the Exchange Offer Registration
Statement in a section setting forth details of the Exchange Offer,
(C) in Annex C hereto in the underwriting or plan of distribution
section of the Prospectus forming a part of the Exchange Offer
Registration Statement and (D) in Annex D hereto in the Letter of
Transmittal delivered pursuant to the Registered Exchange Offer; and
(ii) use its best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act during the
Exchange Offer Registration Period for delivery by Exchanging Dealers
in connection with sales of New Securities received pursuant to the
Registered Exchange Offer, as contemplated by Section 4(h) below.
(f) In the event that any 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 Purchaser, the Company shall issue and deliver to
such Purchaser in exchange for such Securities, a like principal amount of
New Securities. The Company shall seek 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. If (i) because of any change in law or
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applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted to effect
the Registered Exchange Offer as contemplated by Section 2 hereof, or (ii) if
for any other reason the Registered Exchange Offer is not consummated within 210
days of the Closing Date, or (iii) any Purchaser so requests with respect to
Securities held by it following consummation of the Registered Exchange Offer in
which it was not eligible to participate in such Registered Exchange Offer,
provided that any Purchaser or group of Purchasers may not request under this
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clause (iii) an underwritten Shelf Registration unless such Purchaser or group
of Purchasers hold in the aggregate at least $5 million principal amount of the
Securities to be covered by such Shelf Registration Statement, or (iv) any
Holder (other than a Purchaser) is not
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eligible to participate in the Registered Exchange Offer and so requests or (v)
in the case of any Purchaser that participates in the Registered Exchange Offer
or acquires New Securities pursuant to Section 2(f) hereof, such Purchaser does
not receive freely tradeable New Securities in exchange of Securities
constituting any portion of an unsold allotment (it being understood that, for
purposes of this Section 3, (x) the requirement that a Purchaser deliver a
Prospectus containing the information required by Items 507 and/or 508 of
Regulation S-K under the Act in connection with sales of New Securities acquired
in exchange for such Securities shall result in such New Securities being not
"freely tradeable" but (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of New Securities acquired in the Registered
Exchange Offer in exchange for Securities acquired as a result of market-making
activities or other trading activities shall not result in such New Securities
being not "freely tradeable") so requests with respect to such New Securities,
provided that any Purchaser or group of Purchasers may not request under
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this clause (v) an underwritten Shelf Registration unless such Purchaser or
group of Purchasers hold in the aggregate at least $5 million principal amount
of the Securities to be covered by such Shelf Registration Statement, the
following provisions shall apply:
(a) The Company shall as promptly as practicable (and shall use its
best efforts to so file no more than 30 days after so required or requested
pursuant to this Section 3), file with the Commission and thereafter shall
use its best efforts to cause to be declared effective under the Act a
Shelf Registration Statement relating to the offer and sale of the
Securities or the New Securities, as applicable, by the Holders in whose
behalf such Shelf Registration Statement is being filed from time to time
in accordance with the methods of distribution elected by the Majority
Holders and set forth in such Shelf Registration Statement; provided, that
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with respect to New Securities received by a Purchaser in exchange for
Securities constituting any portion of an unsold allotment, the Company
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 Regulation S-K Items 507
and/or 508, as applicable, in satisfaction of its obligations under this
paragraph (a) 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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(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by Holders for a period of two
years from the Closing Date or such shorter period that will terminate when
(x) all the Securities or New Securities, as applicable, covered by the
Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or, (y) if the Shelf Registration Statement is being
filed pursuant to clause (ii) of the first paragraph of Section 3, when the
Registered Exchange Offer is consummated (in any such case, such period
being called the "Shelf Registration Period"). The Company shall be deemed
not to have used its best efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily takes any action
that would result in Holders of Securities covered thereby not being able
to offer and sell such Securities during that period, unless (i) such
action is required by applicable law, or (ii) such action is taken by the
Company in good faith and for valid business reasons (not including
avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Company promptly
thereafter complies with the requirements of Section 4(k) hereof, if
applicable.
4. Registration Procedures. In connection with any Shelf
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Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company shall furnish to you, prior to the filing thereof
with the Commission, a copy of any Shelf Registration Statement and any
Exchange Offer Registration Statement, and each amendment thereof and each
amendment or supplement, if any, to the Prospectus included therein and
shall use reasonable efforts to reflect in each such document, when so
filed with the Commission, such comments as you reasonably may propose.
(b) The Company shall use its best efforts to 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 the rules and regulations thereunder,
(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 and (iii) any Prospectus forming part
of any Registration Statement, and any amendment or supplement to such
Prospec-
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tus, does not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements, in
the light of the circumstances under which they were made, not misleading,
except, in each case, with respect to any information required to be
included therein regarding a Holder or underwriter and, with respect to a
Shelf Registration Statement, the plan of distribution.
(c) (1) The Company shall advise you and, in the case of a Shelf
Registration Statement, the Holders of securities covered thereby, and, if
requested by you or any such Holder, confirm such advice in writing:
(i) when such Registration Statement and any amendment thereto
has been filed with the Commission and when such Registration
Statement or any post-effective amendment thereto has become
effective; and
(ii) of any request by the Commission for amendments or
supplements to such Registration Statement or the Prospectus
included therein or for additional information.
(2) The Company shall advise you and, in the case of a Shelf Regis
tration Statement, the Holders of securities covered thereby, and, in the
case of an Exchange Offer Registration Statement, any Exchanging Dealer
which has provided in writing to the Company a telephone or facsimile
number and address for notices, and, if requested by you or any such Holder
or Exchanging Dealer, confirm such advice in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of such Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(ii) of the happening of any event that requires the making of
any changes in such Registration Statement or the Prospectus so that,
as of such date, the statements therein are not misleading and do not
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omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading (which advice shall be accompanied by an instruction to
suspend the use of the Prospectus until the requisite changes have
been made).
(d) The Company shall use its best efforts to obtain the withdrawal
of any order suspending the effectiveness of any Registration Statement
during the Exchange Offer Registration Period or Shelf Registration Period,
as applicable, at the earliest possible time.
(e) The Company shall furnish to each Holder of securities included
within the coverage of any Shelf Registration Statement who so requests,
without charge, at least one copy of such Shelf Registration Statement and
any post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits
(including those incorporated by reference).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of securities included within the coverage of any Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may
reasonably request; and the Company consents to the use of the Prospectus
or any amendment or supplement thereto by each of the selling Holders of
securities in connection with the offering and sale of the securities
covered by the Prospectus or any amendment or supplement thereto, except
when it has provided written notice pursuant to paragraph (c)(2)(iii) above
or otherwise not to use such Prospectus or any amendment or supplement
thereto.
(g) The Company shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, any documents incorporated by reference
therein, and, if the Exchanging Dealer so requests in writing, all exhibits
(including those incorporated by reference).
(h) The Company shall, during the Exchange Offer Registration Period,
promptly deliver to each Exchanging Dealer, without charge, as many
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copies of the Prospectus included in such Exchange Offer Registration
Statement and any amendment or supplement thereto as such Exchanging Dealer
may reasonably request for delivery by such Exchanging Dealer in connection
with a sale of New Securities received by it pursuant to the Registered
Exchange Offer; and the Company consents to the use of the Prospectus or
any amendment or supplement thereto by any such Exchanging Dealer, as
aforesaid, except when it has provided written notice pursuant to paragraph
(c)(2)(iii) above or otherwise not to use such Prospectus or any amendment
or supplement thereto.
(i) Prior to the Registered Exchange Offer or any other offering of
securities pursuant to any Registration Statement, the Company shall
register or qualify or cooperate with the Holders of securities included
therein and their respective counsel in connection with the registration or
qualification of such securities for offer and sale under the securities or
blue sky laws of such states as any such Holders reasonably request in
writing and do any and all other acts or things necessary or advisable to
enable the offer and sale in such states of the securities covered by such
Registration Statement; provided, however, that the Company will not be
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required to qualify generally to do business in any jurisdiction where it
is not then so qualified or to take any action which would subject it to
general service of process or to taxation in any such jurisdiction where it
is not then so subject.
(j) The Company shall cooperate with the Holders of Securities
included in a Registration Statement to facilitate the timely preparation
and delivery of certificates representing Securities to be sold pursuant to
such Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may reasonably
request prior to sales of Securities pursuant to such Registration
Statement.
(k) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) above, the Company shall as soon as reasonably practicable
prepare a post-effective amendment to any Registration Statement or an
amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to 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 necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
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(l) Not later than the effective date of any such Registration
Statement hereunder, the Company shall provide a CUSIP number for the
Securities or New Securities, as the case may be, registered under such
Registration Statement, and provide the applicable trustee with printed
certificates for such Securities or New Securities, in a form eligible for
deposit with The Depository Trust Company ("DTC"), if DTC accepts at such
time securities similar to the Securities or New Securities, as the case
may be.
(m) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make generally
available to its security holders as soon as practicable after the
effective date of the applicable Registration Statement an earnings
statement satisfying the provisions of Section 11(a) of the Act.
(n) The Company shall cause the Indenture or the New Securities
Indenture, as the case may be, to be qualified under the Trust Indenture
Act in a timely manner.
(o) The Company may require each Holder of securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Company such
information regarding such Holder and the distribution of such securities
as the Company may from time to time reasonably require for inclusion in
such Registration Statement, and shall not be required to include in such
Registration Statement securities of a Holder who has not timely provided
such information.
(p) With respect to a Shelf Registration Statement, the Company
shall, if requested, promptly incorporate in a Prospectus supplement or
post-effective amendment to a Shelf Registration Statement, such
information as the Managing Underwriters and Majority Holders reasonably
request should be included therein and shall make all required filings of
such Prospectus supplement or post-effective amendment as soon as notified
of such matters reasonably requested to be incorporated in such Prospectus
supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the Company
shall enter into such agreements (including underwriting agreements) 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
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underwriting agreement is entered into, use reasonable efforts to cause the
same to contain indemnification provisions and procedures no less favorable
than those set forth in Section 6 (or such other provisions and procedures
reasonably acceptable to the Majority Holders and the Managing
Underwriters, if any, with respect to all parties to be indemnified
pursuant to Section 6).
(r) In the case of any Shelf Registration Statement, the Company
shall (i) make reasonably available for inspection by the Holders of
securities 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 Majority Holders or any such
underwriter all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries; (ii) 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) with respect to an underwritten offering, make such
representations and warranties to the Holders of securities registered
thereunder and the underwriters, in form, substance and scope as are
customarily made by issuers to underwriters in primary underwritten
offerings; (iv) with respect to an underwritten offering, obtain opinions
of counsel to the Company and updates thereof (which counsel and opinions
(in form, scope and substance) shall be reasonably satisfactory to the
Managing Underwriters,) addressed to each selling Holder and the
underwriters, covering such matters as are customarily covered in opinions
requested in underwritten offerings; (v) with respect to an underwritten
offering, obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company and Xxxxxx Xxxxx
Corp. (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or Xxxxxx Xxxxx Corp. or of
any business acquired by the Company or Xxxxxx Xxxxx Corp. for which
financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each selling Holder
of securities registered thereunder and the underwriters, if any, in
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with primary underwritten offerings;
and (vi) with respect to an underwritten offering, deliver such documents
and certificates as may be reasonably requested by the Managing
Underwriters, 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
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the Company. The foregoing actions set forth in clauses (iii), (iv), (v)
and (vi) of this Section 4(r) shall be performed at (A) the effectiveness
of such 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.
Prior to receiving any information from the Company pursuant to clause
(ii) in the previous paragraph, each person receiving such information will be
required to agree that any information designated by the Company in good faith
as confidential at the time of delivery or subsequent to its dissemination by
the recipient shall be kept confidential by the recipient and its employees and
agents unless such disclosure is ordered by a court of competent jurisdiction or
required by law or such information becomes generally available to the public
other than through a breach of an obligation of confidentiality. In addition,
any information provided by the Company as a result of such section shall not be
used for any purpose other than discharging due diligence responsibilities.
Such information shall not be used as the basis for any market transactions in
the securities of the Company or Xxxxxx Xxxxx Corp. Each recipient of
information will be required to further agree that he or she will, upon learning
that disclosure of such information is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company to undertake
appropriate action to prevent disclosure of such information at the Company's
expense.
(s) (1) The Company may require each Holder of Registrable
Securities who desires to participate in a Shelf Registration Statement (or a
Purchaser or an Exchanging Dealer who is entitled to utilize the Exchange
Registration Statement to fulfill its prospectus delivery requirement) to
furnish the Company such information regarding such Holder and the distribution
of such Registrable Securities as the Company may, from time to time, reasonably
request. The Company may exclude from such registration the Registrable
Securities of any Holder who unreasonably fails to furnish such information
within a reasonable time after receiving such request.
(2) Each Holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 4(c)(2)(iii), such
Holder will forthwith discontinue disposition of such Registrable Securities
covered by such Registration Statement until such Xxxxxx's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 4(k), or until
it is advised in writing
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by the Company that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto.
(3) No Holder of Registrable Securities may participate in any
underwritten Registration Statement unless such Xxxxxx (i) agrees to sell such
Xxxxxx's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Majority Holders and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably required under the terms of such underwriting
arrangements. No Holder of Registrable Securities may participate in a non-
underwritten Registration Statement unless such Xxxxxx agrees to be bound by
the provisions of Section 6 hereof.
5. Registration Expenses. The Company shall bear all expenses
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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 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 Purchasers for the reasonable fees and
disbursements of one firm or counsel acting in connection therewith.
6. Indemnification and Contribution. (a) In connection with any
--------------------------------
Registration Statement, the Company and Xxxxxx Xxxxx Corp. agree to indemnify
and hold harmless each Holder of securities covered thereby (including each
Purchaser and, with respect to any Prospectus delivery as contemplated in
Section 4(h) hereof, each Exchanging Dealer), the directors, officers, employees
and agents of each such Holder and each person who controls any such Holder
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 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 not misleading, and
agree to reimburse each such indemnified party, as incurred, for any legal or
other
16
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
-------- -------
that the Company and Xxxxxx Xxxxx Corp. will not be liable in any 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 the Company by or on behalf of any such Holder or any
underwriter specifically for inclusion therein; provided, that the foregoing
indemnity with respect to any preliminary Prospectus shall not inure to the
benefit of any Holder or underwriter (or to the benefit of any person
controlling such Holder or underwriter) from whom the person asserting any such
losses, claims, damages or liabilities purchased Registrable Securities if a
copy of the related Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of such Holder or underwriter to such person, if required
by law so to have been delivered, at or prior to confirmation of the sale of
such Registrable Securities to such person, and if such related Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities (unless such failure to provide such
related Prospectus is the result of non-compliance by the Company with its
obligations to provide such Holder or underwriter with a Prospectus) or at a
time the Company had notified persons under Section 4(s) hereof to cease using
such Registration Statement or Prospectus. This indemnity agreement will be in
addition to any liability which the Company and Xxxxxx Xxxxx Corp. may otherwise
have.
The Company and Xxxxxx Xxxxx Corp. also agree to indemnify or
contribute to Losses of, as provided in Section 6(d), any underwriters of
Securities registered under a Shelf Registration Statement, their officers and
directors and each person who controls such underwriters on substantially the
same basis as that of the indemnification of the Purchaser and the selling
Holders provided in this Section 6(a) and shall, if requested by the Majority
Holders, enter into an underwriting agreement reflecting such agreement, as
provided in Section 4(q) hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Purchaser and, with respect to any Prospectus delivery as
contemplated in Section 4(h) hereof, each Exchanging Dealer) severally
agrees to indemnify and hold harmless (i) the Company, (ii) Xxxxxx Xxxxx
Corp. and any other affiliate of Xxxxxx Xxxxx Corp. who may be deemed to
have securities registered thereunder, (iii) each of their respective
directors, (iv) each of their respective officers who signs such
Registration Statement
17
and (v) each person who controls the Company, Xxxxxx Xxxxx or any such
other affiliates within the meaning of either the Act or the Exchange Act
to the same extent as the foregoing indemnity from the Company to each such
Holder, but only with reference to written information relating to such
Holder furnished to the Company 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 which any such
Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party (i)
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
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 otherwise materially prejudices the indemnifying
party 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 (except to the extent
failure to give notice limited the right to indemnification). The
indemnifying party shall be entitled to appoint 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 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 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 one such separate counsel (and one
local counsel in any jurisdiction) in connection with a proceeding or
related proceedings 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
18
which 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 be liable for any
settlement of any proceeding effected without its consent which consent
will not be unreasonably withheld, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment to the extent provided herein. 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.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason (other than because of the failure to
give timely notice), then each applicable indemnifying party, in lieu of
indemnifying such indemnified 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 same) (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. 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 Company shall be deemed to be equal to the total
net pro-
19
ceeds from the Initial Placement (before deducting expenses) as
set forth on the cover page of the Final Memorandum with respect to the
Securities sold under such Registration Statement. Benefits received by
the Purchasers (other than as set forth below) 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 Holders
(including Purchasers who are selling securities pursuant to a Registration
Statement) 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 or as otherwise agreed by the Company and such underwriters.
Relative fault shall be determined by reference to, among other things,
whether any alleged untrue statement or omission relates to information
provided by the indemnifying party, on the one hand, or by the indemnified
party, on the other hand. The parties agree that it would not be just and
equitable if contribution were determined by pro rata allocation 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 6, 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 the Company,
Xxxxxx Xxxxx Corp. or any other named issuer of securities under such
Registration Statement within the meaning of either the Act or the Exchange
Act, each officer of the Company, Xxxxxx Xxxxx Corp. or any other named
issuer of securities under such Registration Statement who shall have
signed the Registration Statement and each director of the Company, Xxxxxx
Xxxxx Corp. or any other named issuer of securities under such Registration
Statement shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) The provisions of this Section 6 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder
or the Company, Xxxxxx Xxxxx Corp. or any other named issuer of securities
under such Registration Statement or any of the officers, directors or
control-
20
ling persons referred to in Section 6 hereof, and will survive the
sale by a Holder of securities covered by a Registration Statement.
7. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company has not, as of the date
--------------------------
hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders herein or otherwise conflicts with
the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the
written consent of the Holders of at least a majority of the then
outstanding aggregate principal amount of Registrable Securities; provided
--------
that, with respect to any matter that directly or indirectly affects the
rights of any Purchaser hereunder, the Company shall obtain the written
consent of each such Purchaser against which such amendment, qualification,
supplement, waiver or consent is to be effective. Notwithstanding the
foregoing (except the foregoing proviso), 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 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 Majority
Holders, determined on the basis of securities being sold rather than
registered under such Registration Statement.
(c) 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:
(1) if to a Holder, at the most current address given by such holder
to the Company in accordance with the provisions of this Section 7(c),
which address initially is, with respect to each Holder, the address
of such Holder maintained by the Registrar under the Indenture, with
a copy in like manner to Salomon Brothers Inc;
21
(2) if to you, initially at the respective addresses set forth in the
Purchase Agreement; and
(3) if to the Company or Xxxxxx Xxxxx Corp., 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 Purchasers, the Company or Xxxxxx Xxxxx Corp. by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
(d) 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 the need for an express assignment or any
consent by the Company thereto, subsequent Holders of Registrable
Securities. The Company hereby agrees to extend the benefits of this
Agreement to any Holder of Registrable Securities and any such Holder may
specifically enforce the provisions of this Agreement as if an original
party hereto.
(e) Counterparts. This agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This agreement shall be governed by and construed
-------------
in accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State.
(h) 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
22
thereby, it being intended that all of the rights and privileges of the
parties shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Company, etc. Whenever the consent or
-----------------------------------
approval of Holders of a specified percentage of principal amount of
Registrable Securities is required hereunder, Securities or New Securities,
as applicable, held by the Company or its 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.
23
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
XXXXXX XXXXX COMMAND COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: X.X.
XXXXXX XXXXX CORP.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: V.P.
Accepted in New York, New York
SALOMON BROTHERS INC
By: SALOMON BROTHERS INC
By:
--------------------------
Name:
Title:
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
XXXXXX XXXXX COMMAND COMPANY
By:
---------------------------
Name:
Title:
XXXXXX XXXXX CORP.
By:
----------------------------
Name:
Title:
Accepted in New York, New York
SALOMON BROTHERS INC
By: SALOMON BROTHERS INC
By: /s/ Xxx X. Xxxxx
--------------------------
Name: Xxx X. Xxxxx
Title: Director
ANNEX A
Annex A
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Each broker-dealer that receives New Securities for its own account pursuant to
the Exchange Offer must acknowledge that it will deliver a prospectus 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 Securities 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 New Securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities. The Company has agreed that, starting on the Expiration
Date (as defined herein) and ending on the close of business six months from the
Expiration Date, it will make this Prospectus available to any broker-dealer for
use in connection with any such resale. See "Plan of Distribution."
ANNEX B
Xxxxx X
-------
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 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 Company has agreed
that, starting on the Expiration Date and ending on the close of business six
months from the Expiration Date, 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 _______, 199_, all dealers effecting transactions in
the New Securities may be required to deliver a prospectus.*
The Company will not receive any proceeds from any sale of New
Securities by broker-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 Securities 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
Securities Act. The Letter of Transmittal states that by acknowledging that it
will
-------------------
* If this sentence is included, the legend required by Item 502(e) of
Regulation S-K would appear on the back cover page of the Exchange Offer
Prospectus.
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 Securities Act.
For a period of six months after the Expiration Date, the Company 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 Company has agreed to pay all of its expenses
incident to the Exchange Offer (including the reasonable expenses of one counsel
for the holders 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
Securities Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
ANNEX D
Rider A
-------
CHECK HERE 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 is
not engaged in, and does not intend to engage in, a distribution of 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 exchanged 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 Securities Act.
