EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
AMONG
KANSAS CITY SOUTHERN
AS ISSUER,
AND
XXXXXX XXXXXXX & CO. INCORPORATED,
AND
DEUTSCHE BANK SECURITIES INC.
AS INITIAL PURCHASERS
DATED AS OF MAY 5, 2003
REGISTRATION RIGHTS AGREEMENT dated as of May 5, 2003 among Kansas City
Southern, a Delaware corporation (the "COMPANY"), and Xxxxxx Xxxxxxx & Co.
Incorporated and Deutsche Bank Securities Inc., as the initial purchasers (the
"INITIAL PURCHASERS") under the Placement Agreement dated April 29, 2003 (the
"PLACEMENT AGREEMENT"), between the Company and the Initial Purchasers. In order
to induce the Initial Purchasers to enter into the Placement Agreement, the
Company has agreed to provide the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing under
the Placement Agreement.
The Company agrees with the Initial Purchasers, (i) for their benefit as
Initial Purchasers and (ii) for the benefit of the beneficial owners (including
the Initial Purchasers) from time to time of the Preferred Stock (as defined
herein) and the beneficial owners from time to time of the Underlying Common
Stock (as defined herein) issued upon conversion of the Preferred Stock (each of
the foregoing a "HOLDER" and together the "HOLDERS"), as follows:
Section 1. DEFINITIONS. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Placement Agreement. As
used in this Agreement, the following terms shall have the following meanings:
"AFFILIATE" means with respect to any specified person, an "affiliate," as
defined in Rule 144, of such person.
"AMENDMENT EFFECTIVENESS DEADLINE DATE" has the meaning set forth in
Section 2(d) hereof.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.
"CERTIFICATE OF DESIGNATIONS" means the Certificate of Designations, dated
as of May 5, 2003 setting forth the preferences and rights, qualifications,
limitations and restrictions of the Preferred Stock.
"COMMON STOCK" means the shares of common stock, $0.01 par value, of the
Company, and any other securities as may constitute "Common Stock" for purposes
of the Certificate of Designations, including the Underlying Common Stock.
"CONVERSION PRICE" has the meaning assigned such term in the Certificate of
Designations.
"DAMAGES ACCRUAL PERIOD" has the meaning set forth in Section 2(e) hereof.
"DAMAGES PAYMENT DATE" means each February 15, May 15, August 15 and
November 15.
"DEFERRAL NOTICE" has the meaning set forth in Section 3(i) hereof.
"DEFERRAL PERIOD" has the meaning set forth in Section 3(i) hereof.
"DIVIDEND PAYMENT DATE" has the meaning assigned to such term in the
Certificate of Designations.
"EFFECTIVENESS DEADLINE DATE" has the meaning set forth in Section 2(a)
hereof.
"EFFECTIVENESS PERIOD" means the period commencing on the date the Initial
Shelf Registration Statement is declared effective and ending on the date that
all Registrable Securities have ceased to be Registrable Securities.
"REGISTRATION DEFAULT" has the meaning set forth in Section 2(e) hereof.
"REGISTRATION DEFAULT DATE" has the meaning set forth in Section 2(e)
hereof.
"REGISTRATION DEFAULT TERMINATION DATE" has the meaning set forth in
Section 2(e) hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"FILING DEADLINE DATE" has the meaning set forth in Section 2(a) hereof.
"HOLDER" has the meaning set forth in the second paragraph of this
Agreement.
"INITIAL PURCHASERS" has the meaning set forth in the preamble to this
Agreement.
"INITIAL SHELF REGISTRATION STATEMENT" has the meaning set forth in Section
2(a) hereof.
"ISSUE DATE" means the first date of original issuance of the Preferred
Stock.
"LIQUIDATED DAMAGES AMOUNT" has the meaning set forth in Section 2(e)
hereof.
"LIQUIDATED DAMAGES PAYMENTS" has the meaning set forth in Section 2(e).
"LOSSES" has the meaning set forth in Section 6 hereof.
"MATERIAL EVENT" has the meaning set forth in Section 3(i) hereof.
"NOTICE AND QUESTIONNAIRE" means a written notice delivered to the Company
containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Annex A to the Offering
Memorandum of the Company dated April 29, 2003 relating to the Preferred Stock.
"NOTICE HOLDER" means, on any date, any Holder that has delivered a
completed and signed Notice and Questionnaire to the Company on or prior to such
date.
"OFFERING MEMORANDUM" has the meaning set forth in Section 2(a) hereof.
"PLACEMENT AGREEMENT" has the meaning set forth in the preamble hereof.
"PREFERRED STOCK" means the 4.25% Redeemable Cumulative Convertible
Perpetual Preferred Stock, Series C (par value $1.00 per share) of the Company
that has the rights, powers and preferences set forth in the Certificate of
Designations.
"PROSPECTUS" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all materials incorporated by reference or
explicitly deemed to be incorporated by reference in such Prospectus.
"RECORD DATE" has the meaning assigned to such term in the Certificate of
Designations.
"RECORD HOLDER" means (i) with respect to any Damages Payment Date relating
to any Preferred Stock as to which any such Liquidated Damages Amount has
accumulated, the holder of record of such share of Preferred Stock on the Record
Date with respect to the Dividend Payment Date on which such Damages Payment
Date shall occur and (ii) with respect to any Damages Payment Date relating to
the Underlying Common Stock as to which any such Liquidated Damages Amount has
accrued, the registered holder of such Underlying Common Stock on the Record
Date immediately preceding the relevant Damages Payment Date.
"REGISTRABLE SECURITIES" means the shares of Preferred Stock until any such
share of Preferred Stock has been converted into the Underlying Common Stock
and, at all times subsequent to any such conversion, the Underlying Common Stock
and any securities into or for which such Underlying Common Stock has been
converted or exchanged, and any security issued with respect thereto upon any
stock dividend, split or similar event until, in the case of any such security,
(A) the earliest of (i) its effective registration under the Securities Act and
resale in accordance with the Registration Statement covering it, (ii)
expiration of the holding period that would be applicable thereto under Rule
144(k) to a sale by a non-Affiliate of the Company or (iii) its sale to the
public pursuant to Rule 144 (or any similar provision then in force, but not
Rule 144A) under the Securities Act, and (B) as a result of the event or
circumstance described in any of the foregoing clauses (A)(i) through (iii), the
legend with respect to transfer restrictions required by the Certificate of
Designations is removed or removable in accordance with the terms of the
Certificate of Designations or such legend, as the case may be.
"REGISTRATION EXPENSES" has the meaning set forth in Section 5 hereof.
"REGISTRATION STATEMENT" means any registration statement of the Company
that covers any of the Registrable Securities pursuant to the provisions of this
Agreement including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all materials incorporated by reference or explicitly deemed to be incorporated
by reference in such registration statement.
"RESTRICTED SECURITIES" means "Restricted Securities" as defined in Rule
144.
"RULE 144" means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"RULE 144A" means Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"SHELF REGISTRATION STATEMENT" has the meaning set forth in Section 2(a)
hereof.
"SPECIAL COUNSEL" means a nationally recognized law firm experienced in
securities law matters designated by the Company, with the written consent of
the Initial Purchasers (which shall not be unreasonably withheld), the
reasonable fees and expenses of which will be paid by the Company pursuant to
Section 5 hereof, or one such other successor counsel as shall be specified by
the Holders of a majority of the Registrable Securities.
"SPECIAL DIVIDENDS" has the meaning assigned to such term in the
Certificate of Designations.
"SUBSEQUENT SHELF REGISTRATION STATEMENT" has the meaning set forth in
Section 2(b) hereof.
"TRANSFER AGENT" means UMB Bank, N.A., the Transfer Agent for the Preferred
Stock or any successor Transfer Agent pursuant to the terms of the Certificate
of Designations.
"UNDERLYING COMMON STOCK" means the Common Stock into which the Preferred
Stock is convertible or that is issued upon any such conversion.
Section 2. SHELF REGISTRATION. The Company shall prepare and file or cause
to be prepared and filed with the SEC, by the date (the "FILING DEADLINE DATE")
ninety (90) days after the Issue Date, a Registration Statement for an offering
to be made on a delayed or continuous basis pursuant to Rule 415 of the
Securities Act (a "SHELF REGISTRATION STATEMENT") registering the resale from
time to time by Holders thereof of all of the Registrable Securities (the
"INITIAL SHELF REGISTRATION STATEMENT"). The Initial Shelf Registration
Statement shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Securities for resale by such Holders in
accordance with the methods of distribution elected by the Holders and set forth
in the Initial Shelf Registration Statement. The Company shall use its best
efforts to cause the Initial Shelf Registration Statement to be declared
effective under the Securities Act as promptly as is practicable but in any
event by the date (the "EFFECTIVENESS DEADLINE DATE") that is one hundred eighty
(180) days after the Issue Date, and, to keep the Initial Shelf Registration
Statement (or any Subsequent Shelf Registration Statement) continuously
effective under the Securities Act until the expiration of the Effectiveness
Period. At the time the Initial Shelf Registration Statement is declared
effective, each Holder that became a Notice Holder on or prior to the date ten
(10) Business Days prior to such time of effectiveness shall be named as a
selling securityholder in the Initial Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of Registrable Securities in accordance with applicable
law. None of the Company's security holders (other than the Holders of
Registrable Securities) shall have the right to include any of the Company's
securities in the Shelf Registration Statement; provided, however, that if that
if the proposed transactions contemplated by the Acquisition Agreement
(including the ancillary agreements thereto) and the Stock Purchase Agreement
(each as defined in the Offering Memorandum relating to the Preferred Stock
dated April 29, 2003 (the "OFFERING MEMORANDUM")) are consummated, any party
under any such agreements will not, if required under registration rights
granted to such any party by the Company pursuant to such agreements, be
prohibited from including such shares of Common Stock for registration in any
Subsequent Shelf Registration Statement required to be filed under Section 2(b).
The Company shall use commercially reasonable efforts to seek a waiver from such
parties prior to including such shares of Common Stock for registration in such
Subsequent Shelf Registration Statement.
(b) If the Initial Shelf Registration Statement or any Subsequent Shelf
Registration Statement ceases to be effective for any reason at any time during
the Effectiveness Period (other than because all Registrable Securities
registered thereunder shall have been resold pursuant thereto or shall have
otherwise ceased to be Registrable Securities), the Company shall use its best
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within thirty (30) days of such
cessation of effectiveness amend the Shelf Registration Statement in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the securities that as of the date of such filing are
Registrable Securities (a "SUBSEQUENT SHELF REGISTRATION STATEMENT"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use its
commercially reasonable best efforts to cause the Subsequent Shelf Registration
Statement to become effective as promptly as is practicable after such filing
and to keep such Registration Statement (or subsequent Shelf Registration
Statement) continuously effective until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration Statement
if required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement, if
required by the Securities Act or as necessary to name a Notice Holder as a
selling securityholder pursuant to Section (d) below.
(d) Each Holder agrees that if such Holder wishes to sell Registrable
Securities pursuant to a Shelf Registration Statement and related Prospectus, it
will do so only in accordance with this Section 2(d) and Section 3(i). Each
Holder wishing to sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus agrees to deliver a Notice and Questionnaire to
the Company at least three (3) Business Days prior to any intended distribution
of Registrable Securities under the Shelf Registration Statement. From and after
the date the Initial Shelf Registration Statement is declared effective, the
Company shall, as promptly as practicable after the date a Notice and
Questionnaire is delivered, and in any event upon the later of (x) five (5)
Business Days after such date or (y) five (5) Business Days after the expiration
of any Deferral Period in effect when the Notice and Questionnaire is delivered
or put into effect within five (5) Business Days of such delivery date:
(i) if required by applicable law, file with the SEC a post-effective
amendment to the Shelf Registration Statement or prepare and, if required
by applicable law, file a supplement to the related Prospectus or a
supplement or amendment to any document incorporated therein by reference
or file any other required document so that the Holder delivering such
Notice and Questionnaire is named as a selling securityholder in the Shelf
Registration Statement and the related Prospectus in such a manner as to
permit such Holder to deliver such Prospectus to purchasers of the
Registrable Securities in accordance with applicable law and, if the
Company shall file a post-effective amendment to the Shelf Registration
Statement, use its commercially reasonable best efforts to cause such
post-effective amendment to be declared effective under the Securities Act
as promptly as is practicable, but in any event by the date (the "AMENDMENT
EFFECTIVENESS DEADLINE DATE") that is forty-five (45) days after the date
such post-effective amendment is required by this clause to be filed;
(ii) provide such Holder copies of any documents filed pursuant to
Section 2(d)(i); and
(iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment
filed pursuant to Section 2(d)(i);
PROVIDED that if such Notice and Questionnaire is delivered during a Deferral
Period, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Deferral Period in accordance with Section
3(i). Notwithstanding anything contained herein to the contrary, (i) the Company
shall be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Registration Statement or related Prospectus and
(ii) the Amendment Effectiveness Deadline Date shall be extended by up to ten
(10) Business Days from the expiration of a Deferral Period (and the Company
shall incur no obligation to pay Liquidated Damages during such extension) if
such Deferral Period shall be in effect on the Amendment Effectiveness Deadline
Date.
(e) The parties hereto agree that the Holders of Registrable Securities
will suffer damages, and that it would not be feasible to ascertain the extent
of such damages with precision, if
(i) the Initial Shelf Registration Statement has not been filed on or
prior to the Filing Deadline Date,
(ii) the Initial Shelf Registration Statement has not been declared
effective under the Securities Act on or prior to the Effectiveness
Deadline Date,
(iii) the Company has failed to perform its obligations set forth in
Section 2(d) within the time period required therein,
(iv) any post-effective amendment to a Shelf Registration Statement
filed pursuant to Section 2(d)(i) has not become effective under the
Securities Act on or prior to the Amendment Effectiveness Deadline Date,
(v) the aggregate duration of Deferral Periods in any period exceeds
the number of days permitted in respect of such period pursuant to Section
3(i) hereof, or
(vi) the number of Deferral Periods in any period exceeds the number
permitted in respect of such period pursuant to Section 3(i) hereof.
Each event described in any of the foregoing clauses (i) through (vi) is
individually referred to herein as a "REGISTRATION DEFAULT." For purposes of
this Agreement, each Registration Default set forth above shall begin on the
dates set forth in the table set forth below and shall continue until the ending
dates set forth in the table below:
Type of Registration
Default by Clause Beginning Date Ending Date
---------------------------- ------------------------------- -----------------------------
(i) Filing Deadline Date the date the Initial Shelf
Registration Statement is filed
(ii) Effectiveness Deadline Date the date the Initial Shelf
Registration Statement becomes
effective under the Securities
Act
(iii) the date by which the Company is the date the Company performs
required to perform its its obligations set forth in
obligations under Section 2(d) Section 2(d)
(iv) the Amendment Effectiveness the date the applicable
Deadline Date post-effective amendment to a
Shelf Registration Statement
becomes effective under the
Securities Act
(v) the date on which the aggregate termination of the Deferral
duration of Deferral Periods in Period that caused the limit on
any period exceeds the number of the aggregate duration of
days permitted by Section 3(i) Deferral Periods to be exceeded
(vi) the date of commencement of a termination of the Deferral
Deferral Period that causes the Period that caused the number of
number of Deferral Periods to Deferral Periods to exceed the
exceed the number permitted by number permitted by Section 3(i)
Section 3(i)
Commencing on (and including) any date that a Registration Default has
begun and ending on (but excluding) the next date on which there are no
Registration Defaults that have occurred and are continuing (a "DAMAGES ACCRUAL
PERIOD"), the Company shall pay, as liquidated damages and not as a penalty, to
Record Holders of Registrable Securities an amount (the "LIQUIDATED DAMAGES
AMOUNT") accruing, for each day in the Damages Accrual Period, (i) in respect of
any share of Preferred Stock, as SPECIAL DIVIDENDS at the rate and in the manner
specified in the Certificate of Designation and (ii) in respect of each share of
Underlying Common Stock, as "LIQUIDATED DAMAGES PAYMENTS" at a rate per annum
equal to 0.50% of the Conversion Price in effect on the first day of any such
period; PROVIDED that in the case of a Damages Accrual Period that is in effect
solely as a result of a Registration Default of the type described in clause
(iii) or (iv) of the preceding paragraph, such Liquidated Damages Amount shall
be paid only to the Holders (as set forth in the succeeding paragraph) that have
delivered Notices and Questionnaires that caused the Company to incur the
obligations set forth in Section 2(d) the non-performance of which is the basis
of such Registration Default. In calculating the Liquidated Damages Amount on
any date on which no Preferred Stock is outstanding, the Conversion Price and
the Liquidated Damages Amount shall be calculated as if the Preferred Stock were
still outstanding. Notwithstanding the foregoing, no Liquidated Damages Amount
shall cumulate as to any Registrable Security from and after the earlier of (x)
the date such security is no longer a Registrable Security and (y) expiration of
the Effectiveness Period. The rate of accumulation of the Liquidated Damages
Amount with respect to any period shall not exceed the rate provided for in this
paragraph notwithstanding the occurrence of multiple concurrent Registration
Defaults.
The Liquidated Damages Amount shall cumulate from the first day of the
applicable Damages Accrual Period, and shall be payable in cash on each Damages
Payment Date during the Damages Accrual Period to the Record Holder of the
Registrable Securities on the record date immediately preceding the applicable
Damages Payment Date (and on the Damages Payment Date next succeeding the end of
the Damages Accrual Period if the Damages Accrual Period does not end on a
Damages Payment Date) to the Record Holders of the Registrable Securities as of
the date that such Damages Accrual Period ends; PROVIDED, that, in the case of a
Registration Default of the type described in clause (iii) or (iv) of the first
paragraph of this Section 2(e), such Liquidated Damages Amount shall be paid
only to the Holders entitled thereto pursuant to such first paragraph by check
mailed to the address set forth in the Notice and Questionnaire delivered by
such Holder. Notwithstanding the foregoing, the parties agree that the sole
damages payable for a violation of the terms of this Agreement with respect to
which Special Dividends or Liquidated Damages Payments are expressly provided
shall be such Special Dividends or Liquidated Damages Payments, as applicable.
Nothing shall preclude any Holder from pursuing or obtaining specific
performance or other equitable relief with respect to this Agreement.
All of the Company's obligations set forth in this Section 2(e) that are
outstanding with respect to any Registrable Security at the time such security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to such security have been satisfied in full
(notwithstanding termination of this Agreement pursuant to Section 8(k)) or, in
the case of Special Dividends payable on any shares of Preferred Stock, until
such shares cease to be outstanding.
The parties hereto agree that the Special Dividends and Liquidated Damages
Payments provided for in this Section 2(e) constitute a reasonable estimate of
the damages that may be incurred by Holders of Registrable Securities by reason
of the failure of the Shelf Registration Statement to be filed or declared
effective or available for effecting resales of Registrable Securities in
accordance with the provisions hereof.
Section 3. REGISTRATION PROCEDURES. In connection with the registration
obligations of the Company under Section 2 hereof, the Company shall:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the Holders thereof
in accordance with the intended method or methods of distribution thereof,
and use its best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; PROVIDED that
before filing any Registration Statement or Prospectus or any amendments or
supplements thereto with the SEC, furnish to the Initial Purchasers and the
Special Counsel of such offering, if any, copies of all such documents
proposed to be filed and use its commercially reasonable best efforts to
reflect in each such document when so filed with the SEC such comments as
the Initial Purchasers or the Special Counsel, if any, reasonably shall
propose within five (5) Business Days of the delivery of such copies to the
Initial Purchasers and the Special Counsel.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period
specified in Section 2(a); cause the related Prospectus to be supplemented
by any required prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and use its commercially reasonable best efforts to comply
with the provisions of the Securities Act applicable to it with respect to
the disposition of all securities covered by such Registration Statement
during the Effectiveness Period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration Statement
as so amended or such Prospectus as so supplemented.
(c) As promptly as practicable give notice to the Notice Holders, the
Initial Purchasers and the Special Counsel, (i) when any Prospectus,
prospectus supplement, Registration Statement or post-effective amendment
to a Registration Statement has been filed with the SEC and, with respect
to a Registration Statement or any post-effective amendment, when the same
has been declared effective, (ii) of any request, following the
effectiveness of the Initial Shelf Registration Statement under the
Securities Act, by the SEC or any other federal or state governmental
authority for amendments or supplements to any Registration Statement or
related Prospectus or for additional information, (iii) of the issuance by
the SEC or any other federal or state governmental authority of any stop
order suspending the effectiveness of any Registration Statement or the
initiation or threatening of any proceedings for that purpose, (iv) of the
receipt by the Company of any notification with respect to the suspension
of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (v) of the occurrence of a
Material Event and (vi) of the determination by the Company that a
post-effective amendment to a Registration Statement will be filed with the
SEC, which notice may, at the discretion of the Company (or as required
pursuant to Section 3(i)), state that it constitutes a Deferral Notice, in
which event the provisions of Section 3(i) shall apply.
(d) Use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement or the lifting of
any suspension of the qualification (or exemption from qualification) of
any of the Registrable Securities for sale in any jurisdiction in which
they have been qualified for sale, in either case at the earliest possible
moment, and provide immediate notice to each Notice Holder and the Initial
Purchasers of the withdrawal of any such order.
(e) If reasonably requested by the Initial Purchasers or any Notice
Holder, as promptly as practicable incorporate in a prospectus supplement
or post-effective amendment to a Registration Statement such information as
the Initial Purchasers and the Special Counsel, or such Notice Holder shall
on the basis of an opinion of nationally-recognized counsel experienced in
such matters, determine to be required to be included therein by applicable
law and make any required filings of such prospectus supplement or
post-effective amendment.
(f) As promptly as practicable furnish to each Notice Holder, the
Special Counsel and the Initial Purchasers, without charge, at least one
(1) conformed copy of the Registration Statement and any amendment thereto,
including exhibits and all documents incorporated or deemed to be
incorporated therein by reference.
(g) During the Effectiveness Period, deliver to each Notice Holder,
the Special Counsel, if any, and the Initial Purchasers, in connection with
any sale of Registrable Securities pursuant to a Registration Statement,
without charge, as many copies of the Prospectus or Prospectuses relating
to such Registrable Securities (including each preliminary prospectus) and
any amendment or supplement thereto as such Notice Holder may reasonably
request; to provide a "reasonable number" of copies thereof to the New York
Stock Exchange as contemplated by Rule 153 under the Securities Act; and
the Company hereby consents (except during such periods that a Deferral
Notice is outstanding and has not been revoked) to the use of such
Prospectus or each amendment or supplement thereto by each Notice Holder in
connection with any offering and sale of the Registrable Securities covered
by such Prospectus or any amendment or supplement thereto in the manner set
forth therein.
(h) Prior to any public offering of the Registrable Securities
pursuant to a Registration Statement, use its commercially reasonable best
efforts to register or qualify or cooperate with the Notice Holders and the
Special Counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any Notice Holder reasonably
requests in writing (which request may be included in the Notice and
Questionnaire); prior to any public offering of the Registrable Securities
pursuant to the Shelf Registration Statement, use its commercially
reasonable best efforts to keep each such registration or qualification (or
exemption therefrom) effective during the Effectiveness Period in
connection with such Notice Holder's offer and sale of Registrable
Securities pursuant to such registration or qualification (or exemption
therefrom) and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of such
Registrable Securities in the manner set forth in the relevant Registration
Statement and the related Prospectus; PROVIDED that the Company will not be
required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to
qualify but for this Agreement or (ii) take any action that would subject
it to general service of process in suits or to taxation in any such
jurisdiction where it is not then so subject.
(i) Upon (A) the issuance by the SEC of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section
8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the
existence of any fact (a "MATERIAL EVENT") as a result of which any
Registration Statement shall contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or any Prospectus
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (C) the occurrence or existence of any pending
corporate development that, in the reasonable discretion of the Company,
makes it appropriate to suspend the availability of the Shelf Registration
Statement and the related Prospectus for a discrete period of time:
(i) in the case of clause (B) above, subject to clause (ii)
below, as promptly as practicable prepare and file, if necessary
pursuant to applicable law, a post-effective amendment to such
Registration Statement or a supplement to the related Prospectus or
any document incorporated therein by reference or file any other
required document that would be incorporated by reference into such
Registration Statement and Prospectus so that such Registration
Statement does not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and such
Prospectus does not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, as
thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder, and, in the case of a post-effective amendment
to a Registration Statement, subject to the next sentence, use its
commercially reasonable best efforts to cause it to be declared
effective as promptly as is practicable, and
(ii) give notice to the Notice Holders, and the Special Counsel,
if any, that the availability of the Shelf Registration Statement is
suspended (a "DEFERRAL NOTICE") and, upon receipt of any Deferral
Notice, each Notice Holder agrees not to sell any Registrable
Securities pursuant to the Registration Statement until such Notice
Holder's receipt of copies of the supplemented or amended Prospectus
provided for in clause (i) above, or until it is advised in writing by
the Company that the Prospectus may be used, and has received copies
of any additional or supplemental filings that are incorporated or
deemed incorporated by reference in such Prospectus.
The Company will use its commercially reasonable best efforts to ensure
that the use of the Prospectus may be resumed (x) in the case of clause (A)
above, as promptly as is practicable, (y) in the case of clause (B) above, as
soon as, in the sole judgment of the Company, public disclosure of such Material
Event would not be prejudicial to or contrary to the interests of the Company
or, if necessary to avoid unreasonable burden or expense, as soon as practicable
thereafter and (z) in the case of clause (C) above, as soon as in the reasonable
discretion of the Company, such suspension is no longer appropriate. The Company
shall be entitled to exercise its right under this Section 3(i) to suspend the
availability of the Shelf Registration Statement or any Prospectus, without
incurring or accruing any obligation to pay liquidated damages pursuant to
Section 2(e), no more than one (1) time in any three month period or three (3)
times in any twelve month period, and any such period during which the
availability of the Registration Statement and any Prospectus is suspended (the
"DEFERRAL PERIOD") shall, without incurring any obligation to pay liquidated
damages pursuant to Section 2(e), not exceed 30 days; PROVIDED that the
aggregate duration of any Deferral Periods shall not exceed 30 days in any three
month period or 90 days in any twelve (12) month period.
(j) If requested in writing in connection with a disposition of Registrable
Securities pursuant to a Registration Statement, make reasonably available for
inspection during normal business hours by a representative for the Notice
Holders of such Registrable Securities, any broker-dealers, attorneys and
accountants retained by such Notice Holders, and any attorneys or other agents
retained by a broker-dealer engaged by such Notice Holders, all relevant
financial and other records and pertinent corporate documents and properties of
the Company and its subsidiaries, and cause the appropriate officers, directors
and employees of the Company and its subsidiaries to make reasonably available
for inspection during normal business hours on reasonable notice all relevant
information reasonably requested by such representative for the Notice Holders,
or any such broker-dealers, attorneys or accountants in connection with such
disposition, in each case as is customary for similar "DUE DILIGENCE"
examinations; PROVIDED that such persons shall first agree in writing with the
Company that any information that is reasonably and in good faith designated by
the Company in writing as confidential at the time of delivery of such
information shall be kept confidential by such persons and shall be used solely
for the purposes of exercising rights under this Agreement, unless (i)
disclosure of such information is required by court or administrative order or
is necessary to respond to inquiries of regulatory authorities, (ii) disclosure
of such information is required by law (including any disclosure requirements
pursuant to federal securities laws in connection with the filing of any
Registration Statement or the use of any prospectus referred to in this
Agreement), (iii) such information becomes generally available to the public
other than as a result of a disclosure or failure to safeguard by any such
person or (iv) such information becomes available to any such person from a
source other than the Company and such source is not bound by a confidentiality
agreement, and PROVIDED FURTHER that the foregoing inspection and information
gathering shall, to the greatest extent possible, be coordinated on behalf of
all the Notice Holders and the other parties entitled thereto by Special
Counsel.
(k) Comply with all applicable rules and regulations of the SEC and make
generally available to its securityholders earning statements (which need not be
audited) satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the Securities Act)
for a 12-month period commencing on the first day of the first fiscal quarter of
the Company commencing after the effective date of a Registration Statement,
which statements shall be made available no later than 45 days after the end of
the 12-month period or 90 days if the 12-month period coincides with a fiscal
year of the Company.
(l) Cooperate with each Notice Holder to facilitate the timely preparation
and delivery of certificates representing Registrable Securities sold or to be
sold pursuant to a Registration Statement, which certificates shall not bear any
restrictive legends, and cause such Registrable Securities to be in such
denominations as are permitted by the Certificate of Designations and registered
in such names as such Notice Holder may request in writing at least one (1)
Business Day prior to any sale of such Registrable Securities.
(m) Provide a CUSIP number for all Registrable Securities covered by each
Registration Statement not later than the effective date of such Registration
Statement and provide the Transfer Agent and the transfer agent for the Common
Stock with printed certificates for the Registrable Securities that are in a
form eligible for deposit with The Depository Trust Company.
(n) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc. or the New York Stock Exchange,
Inc.
(o) Upon (i) the filing of the Initial Shelf Registration Statement and
(ii) the effectiveness of the Initial Shelf Registration Statement, announce the
same, in each case by release to Reuters Economic Services and Bloomberg
Business News or other reasonable means of distribution.
Section 4. HOLDER'S OBLIGATIONS. Each Holder agrees, by acquisition of the
Registrable Securities, that no Holder shall be entitled to sell any of such
Registrable Securities pursuant to a Registration Statement or to receive a
Prospectus relating thereto, unless such Holder has furnished the Company with a
Notice and Questionnaire as required pursuant to Section 2(d) hereof (including
the information required to be included in such Notice and Questionnaire) and
the information set forth in the next sentence. Each Notice Holder agrees
promptly to furnish to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such Notice
Holder not misleading and any other information regarding such Notice Holder and
the distribution of such Registrable Securities as the Company may from time to
time reasonably request. Any sale of any Registrable Securities by any Holder
shall constitute a representation and warranty by such Holder that the
information relating to such Holder and its plan of distribution is as set forth
in the Prospectus delivered by such Holder in connection with such disposition,
that such Prospectus does not as of the time of such sale contain any untrue
statement of a material fact relating to or provided by such Holder or its plan
of distribution and that such Prospectus does not as of the time of such sale
omit to state any material fact relating to or provided by such Holder or its
plan of distribution necessary to make the statements in such Prospectus, in the
light of the circumstances under which they were made, not misleading.
Section 5. REGISTRATION EXPENSES. The Company shall bear all fees and
expenses incurred in connection with the performance by the Company of its
obligations under Sections 2 and 3 of this Agreement whether or not any
Registration Statement is declared effective. Such fees and expenses shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (x) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. or New York Stock
Exchange Inc. and (y) of compliance with federal and state securities or Blue
Sky laws (including, without limitation, reasonable fees and disbursements of
the Special Counsel in connection with Blue Sky qualifications of the
Registrable Securities under the laws of such jurisdictions as Notice Holders of
a majority of the Registrable Securities being sold pursuant to a Registration
Statement may designate), (ii) printing expenses (including, without limitation,
expenses of printing certificates for Registrable Securities in a form eligible
for deposit with The Depository Trust Company), (iii) duplication expenses
relating to copies of any Registration Statement or Prospectus delivered to any
Holders hereunder, (iv) fees and disbursements of counsel for the Company and
the Special Counsel in connection with the Shelf Registration Statement
(provided that the Company shall not be liable for the fees and expenses of more
than one separate firm for all parties participating in any transaction
hereunder), (v) reasonable fees and disbursements of the Transfer Agent and of
the registrar and transfer agent for the Common Stock and (vi) Securities Act
liability insurance obtained by the Company in its sole discretion. In addition,
the Company shall pay the internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees performing legal
or accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing by the Company of the Registrable
Securities on any securities exchange on which similar securities of the Company
are then listed and the fees and expenses of any person, including special
experts, retained by the Company. Notwithstanding the provisions of this Section
5, each seller of Registrable Securities shall pay selling expenses and all
registration expenses to the extent required by applicable law.
Section 6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall indemnify and hold
harmless each Notice Holder and each person, if any, who controls any Notice
Holder (within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act) from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) (collectively, "LOSSES") caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made not
misleading, except insofar as such Losses are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to the Holders furnished to the Company in writing by or on
behalf of a Holder or any underwriter (in the case of an underwritten offering)
expressly for use therein; PROVIDED that if any Losses arise out of or are based
upon an untrue statement, alleged untrue statement, omission or alleged omission
contained in any preliminary prospectus that did not appear in the final
prospectus, the Company shall not have any liability with respect thereto to any
Holder if any Holder delivered a copy of the preliminary prospectus to the
person alleging such Losses and failed to deliver a copy of the final
prospectus, as amended or supplemented if it has been amended or supplemented,
to such person at or prior to the written confirmation of the sale to that
person.
(b) INDEMNIFICATION BY HOLDERS. Each Holder agrees severally and not
jointly to indemnify and hold harmless the Company, the directors of the
Company, the officers of the Company who sign the Registration Statement, and
each person, if any, who controls the Company (within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act) each
underwriter and each person who controls any underwriter within the meaning of
the Securities Act (in the case of an underwritten offering), and any other
Holder, from and against all Losses caused by any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement or
any amendment thereof, any preliminary prospectus or the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only with reference to information
relating to such Holder furnished to the Company in writing by or on behalf of
such Holder expressly for use in such Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto. In no event
shall the liability of any Holder hereunder be greater in amount than the dollar
amount of the proceeds received by such Holder upon the sale of the Registrable
Securities pursuant to the Registration Statement giving rise to such
indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any proceeding
(including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to Section 6(a) or
6(b) hereof, such person (the "INDEMNIFIED PARTY") shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Holders and all
persons, if any, who control any Holder within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act and (ii) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
the Company, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as they are
incurred. In the case of any such separate firm for the Holders and such control
persons of any Holders, such firm shall be designated in writing by the Holders
of a majority (with Holders of Preferred Stock deemed to be the Holders, for
purposes of determining such majority, of the number of shares of Underlying
Common Stock into which such Preferred Stock are or would be convertible as of
the date on which such designation is made) of the Registrable Securities
covered by the Registration Statement held by Holders that are indemnified
parties pursuant to Section 6(a). In the case of any such separate firm for the
Company, and such directors, officers and control persons of the Company, such
firm shall be designated in writing by the Company. The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) CONTRIBUTION. To the extent that the indemnification provided for in
Section 6(a) or 6(b) is unavailable to an indemnified party or insufficient in
respect of any Losses referred to therein, then each indemnifying party under
such paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such Losses (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the
Registrable Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such Losses, as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed to be
equal to the total net proceeds from the initial placement pursuant to the
Placement Agreement (after deducting expenses) of the Registrable Securities to
which such Losses relate. Benefits received by any Holder shall be deemed to be
equal to the value of receiving Registrable Securities that are registered under
the Securities Act. The relative fault of the Holders on the one hand and the
Company on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by or on behalf of the Holders or by the Company, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Holders' respective obligations to
contribute pursuant to this paragraph are several in proportion to the
respective number of Registrable Securities they have sold pursuant to a
Registration Statement, and not joint.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 6(d) were determined by PRO RATA
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the Losses referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding this Section 6(d), an indemnifying party that
is a selling Holder shall not be required to contribute any amount in excess of
the amount by which the total price at which the Registrable Securities sold by
such indemnifying party and distributed to the public were offered to the public
exceeds the amount of any damages that such indemnifying party has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 6 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(e) The indemnity, contribution and expense reimbursement obligations of
the parties hereunder shall be in addition to any liability any indemnified
party may otherwise have hereunder, under the Placement Agreement or otherwise.
(f) The indemnity and contribution provisions contained in this Section 6
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Holder or any person controlling any Holder, or the Company, or the
Company's officers or directors or any person controlling the Company and (iii)
the sale of any Registrable Securities by any Holder.
Section 7. INFORMATION REQUIREMENTS. The Company covenants that, if at any
time before the end of the Effectiveness Period the Company is not subject to
the reporting requirements of the Exchange Act, it will cooperate with any
Holder and take such further reasonable action as any Holder may reasonably
request in writing (including, without limitation, making such reasonable
representations as any such Holder may reasonably request), all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 and Rule 144A under the Securities Act and
customarily taken in connection with sales pursuant to such exemptions. Upon the
written request of any Holder, the Company shall deliver to such Holder a
written statement as to whether it has complied with such filing requirements,
unless such a statement has been included in the Company's most recent report
filed pursuant to Section 13 or Section 15(d) of Exchange Act. Notwithstanding
the foregoing, nothing in this Section 7 shall be deemed to require the Company
to register any of its securities (other than the Common Stock) under any
section of the Exchange Act.
Section 8. MISCELLANEOUS.
(a) NO CONFLICTING AGREEMENTS. The Company is not, as of the date hereof, a
party to, nor shall it, on or after the date of this Agreement, enter into, any
agreement with respect to its securities that conflicts with the rights granted
to the Holders in this Agreement. The Company represents and warrants that the
rights granted to the Holders hereunder do not in any way conflict with the
rights granted to the holders of the Company's securities under any other
agreements.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of Holders of a majority of
the then outstanding Underlying Common Stock constituting Registrable Securities
(with Holders of Preferred Stock deemed to be the Holders, for purposes of this
Section, of the number of outstanding shares of Underlying Common Stock into
which such Preferred Stock is or would be convertible as of the date on which
such consent is requested). Notwithstanding the foregoing, a waiver or consent
to depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders 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 Holders of at least a majority of the
Registrable Securities being sold by such Holders pursuant to such Registration
Statement; PROVIDED, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence. Each Holder of Registrable Securities
outstanding at the time of any such amendment, modification, supplement, waiver
or consent or thereafter shall be bound by any such amendment, modification,
supplement, waiver or consent effected pursuant to this Section 8(b), whether or
not any notice, writing or marking indicating such amendment, modification,
supplement, waiver or consent appears on the Registrable Securities or is
delivered to such Holder.
(c) NOTICES. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand delivery, by telecopier, by courier
guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
(i) if to a Holder, at the most current address given by such Holder
to the Company in a Notice and Questionnaire or any amendment thereto;
(ii) if to the Company, to:
Kansas City Southern
X.X. Xxx 000000
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Attention: Corporate Secretary's Office
Telephone: (000) 000-0000
with a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
(iii) if to the Initial Purchasers, to:
Xxxxxx Xxxxxxx & Co. Incorporated
Deutsche Bank Securities Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Equity Capital Markets
Telecopy No.: (000) 000-0000
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) APPROVAL OF HOLDERS. Whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its affiliates (as such term is
defined in Rule 405 under the Securities Act) (other than the Initial Purchasers
or subsequent Holders if such subsequent Holders are deemed to be such
affiliates solely by reason of their holdings of such Registrable Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
(e) SUCCESSORS AND ASSIGNS. Any person who purchases any Registrable
Securities from the Initial Purchasers shall be deemed, for purposes of this
Agreement, to be an assignee of the Initial Purchasers. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties and shall inure to the benefit of and be binding upon each Holder
of any Registrable Securities.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be original and all of which taken together
shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(i) SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated thereby, and the parties hereto shall use their commercially
reasonable best efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term,
provision, covenant or restriction, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent permitted
by law.
(j) ENTIRE AGREEMENT. This Agreement is intended by the parties as a final
expression of their agreement and is intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and the registration rights granted by the
Company with respect to the Registrable Securities. Except as provided in the
Placement Agreement, there are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
the registration rights granted by the Company with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and undertakings
among the parties with respect to such registration rights. No party hereto
shall have any rights, duties or obligations other than those specifically set
forth in this Agreement. In no event will such methods of distribution take the
form of an underwritten offering of the Registrable Securities without the prior
agreement of the Company.
(k) TERMINATION. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Section 4, 5 or 6 hereof and the
obligations to make payments of and provide for special dividends or liquidated
damages payments under Section 2(e) hereof to the extent such damages cumulate
prior to the end of the Effectiveness Period, each of which shall remain in
effect in accordance with its terms.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
KANSAS CITY SOUTHERN
By /S/ XXXXXX X. XXXXXX
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President & COO
Confirmed and accepted as of
the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By /S/ XXXXXXX X. XXXX
----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
DEUTSCHE BANK SECURITIES INC.
By /S/ XXXXX X. XXXXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
