EXHIBIT 4.4
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
Dated as of January 27, 2004
between
JEFFERSON-PILOT CORPORATION
and
XXXXXX XXXXXXX & CO. INCORPORATED
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is made and
entered into as of January 27, 2004, between Jefferson-Pilot Corporation, a
North Carolina corporation (the "COMPANY"), and Xxxxxx Xxxxxxx & Co.
Incorporated (the "REPRESENTATIVE"), as representative of the several initial
purchasers named in the Purchase Agreement (the "INITIAL PURCHASERS").
This Agreement is made pursuant to the Purchase Agreement dated January
20, 2004 between the Company and the Representative (the "PURCHASE AGREEMENT"),
which provides for the sale by the Company to the Initial Purchasers of an
aggregate of $300,000,000 principal amount of the 4.75% Notes due 2014 (the
"SECURITIES") to be issued by the Company. In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide to the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution of this Agreement
is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 ACT" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"ADDITIONAL INTEREST" shall have the meaning set forth in Section 2(e)
hereof.
"BUSINESS DAY" shall mean any day other than a Saturday or Sunday or a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed.
"CLOSING DATE" shall mean the Closing Date as defined in the Purchase
Agreement.
"COMPANY" shall have the meaning set forth in the preamble to this
Agreement and shall also include the Company's successors.
"EFFECTIVENESS DEADLINE" shall have the meaning set forth in Section
2(a) hereof.
"EXCHANGE DATES" shall have the meaning set forth in Section 2(a)
hereof.
"EXCHANGE OFFER" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the 1933
Act effected pursuant to Section 2(a) hereof.
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"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated or deemed to be incorporated by reference therein.
"EXCHANGE SECURITIES" shall mean securities issued by the Company under
the Indenture containing terms identical to the Securities (except that (i)
interest thereon shall accrue from the last date on which interest was paid on
the Securities or, if no such interest has been paid, from January 27, 2004 and
(ii) the Exchange Securities will not contain restrictions on transfer or bear a
restrictive legend) and to be offered to Holders of Securities in exchange for
Securities pursuant to the Exchange Offer.
"HOLDER" shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and each of their respective successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Securities under the Indenture; provided that for purposes of Sections 4 and 5
of this Agreement, the term "HOLDER" shall include Participating Broker-Dealers.
"INDENTURE" shall mean the Indenture relating to the Securities dated
as of November 21, 1995, as amended and supplemented by the Fourth Supplemental
Indenture dated as of January 27, 2004 each between the Company and Wachovia
Bank, National Association (formerly First Union National Bank of North
Carolina), as trustee, and as the same may be further amended or supplemented
from time to time in accordance with the terms thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble
to this Agreement.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the
Company or any of its "affiliates" (as such term is defined in Rule 144 under
the 0000 Xxx) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage or amount;
provided further, that none of the Initial Purchasers nor any of their
respective subsidiaries, parents or affiliates shall be deemed affiliates of the
Company for purposes of this definition, and no subsequent holders of
Registrable Securities shall be deemed to be such affiliates solely by reason of
their holding of such Registrable Securities. In cases where this Agreement
shall permit or require any action or determination to be made by, for example,
a majority in principal amount of Registrable Securities being sold or included
in a Shelf Registration or offering or affected by an amendment, the procedures
specified in the provisos to the foregoing sentence shall be applied.
"PARTICIPATING BROKER-DEALER" shall have the meaning specified in
Section 4(a) of this Agreement.
"PERSON" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization or other entity, or a
government or agency or political subdivision thereof.
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"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
all material incorporated or deemed to be incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble
to this Agreement.
"REGISTRABLE SECURITIES" shall mean the Securities; provided, however,
that the Securities shall cease to be Registrable Securities (i) when a
Registration Statement with respect to such Securities shall have been declared
effective under the 1933 Act and such Securities shall have been disposed of
pursuant to such Registration Statement, (ii) when such Securities have been
sold to the public pursuant to Rule 144(k) (or any similar provision then in
force, but not Rule 144A) under the 1933 Act or (iii) when such Securities shall
have ceased to be outstanding.
"REGISTRATION EXPENSES" shall mean all expenses incident to performance
of or compliance by the Company with this Agreement, including without
limitation: (i) all SEC, stock exchange or National Association of Securities
Dealers, Inc. registration and filing fees, (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of counsel for any underwriters or Holders in
connection with blue sky qualification of any of the Exchange Securities or
Registrable Securities), (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus, any amendments or supplements thereto,
any underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) all fees and disbursements relating to the qualification
of the Indenture under applicable securities laws, (vi) the fees and
disbursements of the Trustee and its counsel, (vii) the fees and disbursements
of counsel for the Company and, in the case of a Shelf Registration Statement,
the fees and disbursements of one counsel for the Holders (which counsel shall
be selected by the Representative or, if the Representative elects not to select
such counsel, by the Majority Holders and which counsel may also be counsel for
the Initial Purchasers) and (viii) the fees and disbursements of the independent
auditors of the Company and of any other Person or business whose financial
statements are included or incorporated or deemed to be incorporated by
reference in a Registration Statement, including the expenses of any special
audits or "cold comfort" or similar letters required by or incident to such
performance and compliance. Notwithstanding the foregoing, the Company shall not
be responsible for fees and expenses of counsel to the underwriters (other than
fees and expenses set forth in clause (ii) and (vii) above) or the Holders and
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of Registrable Securities by a Holder.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company that covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement and all amendments and supplements
to any such Registration Statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated or deemed to be incorporated by reference therein.
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"REPRESENTATIVE" shall have the meaning set forth in the preamble to
this Agreement.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES" shall have the meaning set forth in the preamble to this
Agreement.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the Registrable Securities (but no other
securities unless approved by the Holders whose Registrable Securities are
covered by such Shelf Registration Statement) on an appropriate form under Rule
415 under the 1933 Act, or any similar rule that may be adopted by the SEC, and
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 or deemed to be
incorporated by reference therein.
"TRUSTEE" shall mean the trustee with respect to the Securities under
the Indenture.
"UNDERWRITERS" shall have the meaning set forth in the last paragraph
of Section 3 of this Agreement.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" shall mean a
registration in which Registrable Securities are sold to an Underwriter or
Underwriters for reoffering to the public.
"VOLUNTARY SUSPENSION NOTICE" shall have the meaning set forth in
Section 2(b) hereof.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any applicable law or
applicable interpretation of the Staff of the SEC, the Company shall (A) use its
best efforts to prepare and, as soon as practicable but not later than 120 days
following the Closing Date, file with the SEC an Exchange Offer Registration
Statement on an appropriate form under the 1933 Act with respect to a proposed
Exchange Offer and the issuance and delivery to the Holders, in exchange for the
Registrable Securities, of a like principal amount of Exchange Securities, (B)
use its reasonable best efforts to cause the Exchange Offer Registration
Statement to be declared effective under the 1933 Act not later than 180 days of
the Closing Date (the "EFFECTIVENESS DEADLINE"), (C) use its reasonable best
efforts to keep the Exchange Offer Registration Statement effective until the
closing of the Exchange Offer and (D) use its best efforts to cause the Exchange
Offer to be consummated as promptly as practicable, but in any not later than
the date that is 40 days after the Effectiveness Deadline. The Company shall
commence the Exchange Offer by mailing the related exchange offer Prospectus and
accompanying documents to each Holder stating, in addition to such other
disclosures as are required by applicable law:
(i) that the Exchange Offer is being made
pursuant to this Registration Rights Agreement and that all
Registrable Securities validly tendered and not withdrawn will
be accepted for exchange;
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(ii) the dates of acceptance for exchange (which
shall be a period of at least 20 Business Days from the date
such notice is mailed) (the "EXCHANGE DATES");
(iii) that any Registrable Security not tendered
will remain outstanding and continue to accrue interest, but
will not thereafter be entitled to receive any Additional
Interest or be entitled to any registration rights under this
Agreement;
(iv) that Holders electing to have a Registrable
Security exchanged pursuant to the Exchange Offer will be
required to surrender such Registrable Security, together with
the enclosed letter of transmittal, to the institution and at
the address (located in the Borough of Manhattan, The City of
New York) specified in the exchange offer Prospectus or the
accompanying documents prior to the time the Exchange Offer
terminates (which shall not be earlier than 5:00 p.m., New
York City time) on the last Exchange Date; and
(v) that Holders will be entitled to withdraw
their election, not later than the time the Exchange Offer
terminates (which shall not be earlier than 5:00 p.m., New
York City time) on the last Exchange Date, by sending to the
institution and at the address (located in the Borough of
Manhattan, The City of New York) specified in the exchange
offer Prospectus or the accompanying documents a telegram,
telex, facsimile transmission or letter setting forth the name
of such Holder, the principal amount of Registrable Securities
delivered for exchange and a statement that such Holder is
withdrawing his election to have such Securities exchanged.
As soon as reasonably practicable after the last Exchange Date, the
Company shall:
(i) accept for exchange all Registrable
Securities or portions thereof validly tendered and not
withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the
Trustee for cancellation all Registrable Securities or
portions thereof so accepted for exchange by the Company and
issue, and cause the Trustee to promptly authenticate and mail
to each Holder, an Exchange Security equal in principal amount
to the principal amount of the Registrable Securities
surrendered by such Holder.
The Company shall use its best efforts to complete the Exchange Offer
as provided above and shall comply with the applicable requirements of the 1933
Act, the 1934 Act and other applicable laws and regulations in connection with
the Exchange Offer. The Exchange Offer shall not be subject to any conditions,
other than that the Exchange Offer does not violate applicable law or any
applicable interpretation of the Staff of the SEC. The Company shall inform the
Representative of the names and addresses of the Holders to whom the Exchange
Offer is made, and the Representative shall have the right, subject to
applicable law, to contact such Holders and otherwise facilitate the tender of
Registrable Securities in the Exchange Offer.
Each Holder participating in the Exchange Offer shall be required to
represent to the Company that at the time of the consummation of the Exchange
Offer (i) any Exchange
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Securities received by such Holder will be acquired in the ordinary course of
business, (ii) such Holder has no arrangement or understanding with any person
to participate in the distribution of the Securities or the Exchange Securities
within the meaning of the Securities Act, (iii) such Holder is not an
"affiliate," as defined in Rule 405 of the Securities Act, of the Company or, if
it is such affiliate, such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable,
(iv) if such Holder is not a broker-dealer, that it is not engaged in, and does
not intend to engage in, the distribution of the Exchange Securities within the
meaning of the 1933 Act and (v) if such Holder is a broker-dealer, that it will
receive Exchange Securities in exchange for Securities that were acquired for
its own account as a result of market-making activities or other trading
activities and that it will be required to acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities.
(b) In the event that (i) the Company determines that the Exchange
Offer Registration provided for in Section 2(a) above is not available or the
Exchange Offer may not be consummated as soon as practicable after the last
Exchange Date because it would violate applicable law or the applicable
interpretations of the Staff of the SEC, (ii) the Exchange Offer is for any
other reason not consummated within 40 days following the Effectiveness
Deadline, or (iii) the Exchange Offer has been completed and the Representative
has determined, based upon the opinion of legal counsel, that a Registration
Statement must be filed or a Prospectus must be delivered by the Initial
Purchasers in connection with any offering or sale of Registrable Securities,
the Company shall use its best efforts to cause to be filed as soon as
practicable after such determination, date or date that notice of such
determination by the Representative is given to the Company, as the case may be,
a Shelf Registration Statement providing for the sale by the Holders of all of
the Registrable Securities and to use its best efforts to have such Shelf
Registration Statement declared effective by the SEC as soon as practicable. In
the event the Company is required to file a Shelf Registration Statement solely
as a result of the matters referred to in clause (iii) of the preceding
sentence, the Company shall use its best efforts to file and have declared
effective by the SEC both an Exchange Offer Registration Statement pursuant to
Section 2(a) with respect to all Registrable Securities and a Shelf Registration
Statement (which may be a combined Registration Statement with the Exchange
Offer Registration Statement) with respect to offers and sales of Registrable
Securities held by the Initial Purchasers after completion of the Exchange
Offer. The Company agrees to use its best efforts to keep the Shelf Registration
Statement continuously effective and to keep the related Prospectus current
until the expiration of the period referred to in Rule 144(k) with respect to
the Registrable Securities or such shorter period that will terminate when all
of the Registrable Securities covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement or shall have been sold
to the public pursuant to Rule 144(k) (or similar provision then in force, but
not Rule 144A) under the 1933 Act or shall have ceased to be outstanding;
provided, however, that if there is a possible acquisition or business
combination or other transaction, business development or event involving the
Company that would require disclosure in the Shelf Registration Statement or the
documents incorporated or deemed to be incorporated by reference therein or the
related Prospectus and the Company determines in the exercise of its reasonable
judgment that such disclosure is not in the best interests of the Company and
its stockholders or obtaining any financial statements relating to an
acquisition or business combination required to be included in the Shelf
Registration Statement or the documents incorporated or deemed to be
incorporated by reference therein or the related
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Prospectus would be impracticable, the Company shall give the Holders notice (a
"Voluntary Suspension Notice") to suspend use of the Prospectus relating to the
Shelf Registration Statement, and the Holders hereby agree to suspend use of
such Prospectus until the Company has amended or supplemented such Prospectus or
has notified the Holders that use of the then current Prospectus may be resumed
as provided in the penultimate paragraph of Section 3. In the case of any
Voluntary Suspension Notice, the Company shall not be required to disclose in
such notice the possible acquisition or business combination or other
transaction, business development or event as a result of which such notice
shall have been given if the Company determines in good faith that such
acquisition or business combination or other transaction, business development
or event should remain confidential and, while such Voluntary Suspension Notice
is in effect, the Company shall not be required to amend or supplement the Shelf
Registration Statement, the documents incorporated or deemed to be incorporated
by reference therein or the related Prospectus to reflect such possible
acquisition or business combination or other transaction, business development
or event, but shall use its reasonable best efforts to maintain the
effectiveness of such Shelf Registration Statement. Upon the abandonment,
consummation, termination or public announcement or other public disclosure of
the possible acquisition or business combination or other transaction, or if the
applicable business development or event shall cease to exist or shall be
publicly disclosed, then the Company shall promptly comply with this Section
2(b) and Sections 3(b), 3(e)(iv) (if applicable), 3(i) (if applicable) and the
penultimate paragraph in Section 3 hereof and notify the Holders that
disposition of Registrable Securities may resume; provided that, if Section 3(i)
shall require an amendment or supplement to the Shelf Registration Statement or
the related Prospectus, then such resumption shall not occur until the Company
shall have delivered copies of the supplemented or amended Prospectus
contemplated by Section 3(i) to the applicable Holders. Anything herein to the
contrary notwithstanding, the right of the Company to suspend use of the
Prospectus pursuant to this paragraph shall be subject to the limitation set
forth in the last sentence of the penultimate paragraph of Section 3. The
Company further agrees to supplement or amend the Shelf Registration Statement
and/or the related Prospectus if required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the 1933 Act or by any other rules and
regulations thereunder for shelf registration or if reasonably requested by a
Holder with respect to information relating to such Holder, and to use its best
efforts to cause any such amendment to become effective and such Shelf
Registration Statement and/or the related Prospectus to become usable as soon as
thereafter practicable, subject to the right of the Company, on the terms and
subject to the conditions described elsewhere in this Section 2(b), to suspend
its obligation to amend or supplement the Shelf Registration Statement and/or
the related Prospectus by giving a Voluntary Suspension Notice. The Company
agrees to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a) and Section 2(b) including, but
not limited to, the fees and expenses of one counsel to be selected by the
Representative or, if the Representative elect not to select such counsel, by
the Majority Holders and which counsel may also be counsel for the Initial
Purchasers. Each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
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(d) An Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that, if, after it has been declared
effective, the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have become effective during the
period of such interference until the offering of Registrable Securities
pursuant to such Registration Statement may legally resume.
(e) Additional cash interest (the "ADDITIONAL INTEREST") shall be
payable by the Company in respect of the Securities as follows:
(i) If an Exchange Offer Registration Statement
or Shelf Registration Statement is not filed within 120 days
following the Closing Date, then commencing on and including
the 121st day after the Closing Date, in addition to the
interest otherwise payable on the Securities, Additional
Interest will accrue and be payable on the Securities at the
rate of 0.25% per annum; and
(ii) If an Exchange Offer Registration Statement
or Shelf Registration Statement is not declared effective
within 180 days following the Closing Date, then commencing on
and including the 181st day after the Closing Date, in
addition to the interest otherwise payable on the Securities,
Additional Interest will accrue and be payable on the
Securities at the rate of 0.25% per annum; and
(iii) If either (A) the Company has not exchanged
Exchange Securities for all Securities validly tendered and
not withdrawn in accordance with the terms of the Exchange
Offer on or prior to the date that is 40 days after the
Effectiveness Deadline, or (B) if applicable, the Shelf
Registration Statement has been declared effective but such
Shelf Registration Statement ceases to be effective at any
time prior to the expiration of the holding period referred to
in Rule 144(k) or, if earlier, such time as all of the
Registrable Securities covered by the Shelf Registration
Statement have been disposed of pursuant to such Shelf
Registration Statement or sold to the public pursuant to Rule
144(k) (or any similar provision then in force, but not Rule
144A) under the 1933 Act or shall have ceased to be
outstanding, then, in addition to the interest otherwise
payable on the Securities, Additional Interest will accrue and
be payable on the Securities at the rate of 0.25% per annum
from and including (x) the day (whether or not a Business Day)
immediately succeeding the 40th day after the Effectiveness
Deadline, in the case of (A) above, or (y) the day such Shelf
Registration Statement ceases to be effective, in the case of
(B) above;
provided, however, that the Additional Interest rate on the Securities may in no
event exceed 0.25% per annum; and provided, further, that (1) upon the filing of
the Exchange Offer Registration Statement or Shelf Registration Statement (in
the case of (i) above), (2) upon the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement (in the case of (ii)
above), or (3) upon the exchange of Exchange Securities for all Registrable
Securities validly tendered and not withdrawn in the Exchange Offer or upon the
effectiveness of
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the Shelf Registration Statement that had ceased to remain effective prior to
the expiration of the holding period referred to in Rule 144(k) or, if earlier,
such time as all of the Registrable Securities covered by the Shelf Registration
Statement have been disposed of pursuant to such Shelf Registration Statement or
sold to the public pursuant to Rule 144(k) (or any similar provision then in
force, but not Rule 144A) under the 1933 Act or shall have ceased to be
outstanding (in the case of (iii) above), Additional Interest on the Securities
as a result of such clause (i), (ii) or (iii), respectively, shall cease to
accrue.
Any amount of Additional Interest due pursuant to clauses (i), (ii) or
(iii) of the preceding paragraph will be payable in cash and will be payable on
the same dates on which interest is otherwise payable on the Securities and to
the same Persons who are entitled to receive those payments of interest on the
Securities. The amount of Additional Interest payable for any period will be
determined by multiplying the Additional Interest rate, which will be 0.25% per
annum, by the principal amount of the Securities and then multiplying the
product by a fraction, the numerator of which is the number of days that the
Additional Interest rate was applicable during such period (determined on the
basis of a 360-day year comprised of twelve 30-day months) and the denominator
of which is 360.
(f) Without limiting the remedies available to the Initial
Purchasers and the Holders, the Company acknowledges that any failure by the
Company to comply with its obligations under Section 2(a) and Section 2(b)
hereof may result in material irreparable injury to the Initial Purchasers or
the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, any Initial Purchaser or any Holder may obtain such relief
as may be required to specifically enforce the Company's obligations under
Section 2(a) and Section 2(b) hereof, provided that, without limiting the
ability of any Initial Purchaser or any Holder to specifically enforce such
obligations, in the case of any terms of this Agreement for which Additional
Interest pursuant to 2(e) is expressly provided as a remedy for a violation of
such terms, such Additional Interest shall be the sole monetary damages for such
a violation.
3. Registration Procedures.
In connection with the obligations of the Company with respect to the
Registration Statements pursuant to Section 2(a) and Section 2(b) hereof, the
Company shall as expeditiously as practicable:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act, which form (x) shall be selected by the
Company and (y) shall, in the case of a Shelf Registration, be available for the
sale of the Registrable Securities by the selling Holders thereof and (z) shall
comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the SEC to be
filed therewith, and use its best efforts to cause such Registration Statement
to become effective and remain effective in accordance with Section 2 hereof;
(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 effective for the applicable period and,
subject to the Company's rights to suspend the use of the
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Prospectus relating to the Shelf Registration Statement pursuant to Section 2(b)
of this Agreement on the terms and subject to the conditions set forth in such
Section 2(b), cause each Prospectus to be supplemented by any required
prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424
under the 1933 Act if required by such Rule and to keep each Prospectus current
during the period described under Section 4(3) and Rule 174 under the 1933 Act
that is applicable to transactions by brokers or dealers with respect to the
Registrable Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Initial Purchasers, to counsel for
the Holders and to each Underwriter of an Underwritten Offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus, including
each preliminary prospectus, and any amendment or supplement thereto and such
other documents as such Holder, counsel or Underwriter may reasonably request,
in order to facilitate the public sale or other disposition of the Registrable
Securities; and the Company consents to the use of such Prospectus and any
amendment or supplement thereto in accordance with applicable law by each of the
selling Holders of Registrable Securities and any such Underwriter in connection
with the offering and sale of the Registrable Securities covered by and in the
manner described in such Prospectus or any amendment or supplement thereto in
accordance with applicable law;
(d) use its best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of such
jurisdictions as any Holder of Registrable Securities covered by a Registration
Statement shall reasonably request in writing by the time the applicable
Registration Statement is declared effective by the SEC, to cooperate with such
Holders in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. and do any and all other acts and things
which may be reasonably necessary or advisable to enable such Holder to
consummate the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that the Company shall 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 Section 3(d), (ii) file any general consent to service of process or (iii)
subject itself to taxation in any such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for the Holders and counsel for the Initial
Purchasers promptly and, if requested by any such Holder or counsel, confirm
such advice in writing (i) when a Registration Statement has become effective
and when any post-effective amendment thereto has been filed and becomes
effective, (ii) of any request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of the Company contained in
any underwriting agreement, purchase agreement, securities sales agreement or
other similar agreement if any, relating to the offering cease to be true and
correct in all material respects or if the Company receives any notification
with respect to the suspension of the qualification of the Registrable
Securities for
10
sale in any jurisdiction or the initiation of any proceeding for such purpose,
(v) of the happening of any event during the period a Shelf Registration
Statement is effective which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or as a
result of which the Shelf Registration Statement or the related Prospectus
contains an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading or
which requires the making of any changes in such Registration Statement or
Prospectus in order to make the statements therein not misleading (but subject
to the right of the Company, under the circumstances set forth in Section 2(b)
of this Agreement, not to disclose the nature of such event) and (vi) of any
determination by the Company that a post-effective amendment to a Registration
Statement would be appropriate;
(f) use best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement as soon as possible and
provide notice as promptly as practicable to each Holder of the withdrawal of
any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, one conformed copy of each Registration
Statement and any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends and enable such Registrable Securities to be
in such denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holders may reasonably request at least
one business day prior to the closing of any sale of Registrable Securities;
(i) in the case of a Shelf Registration, upon the occurrence of
any event contemplated by Section 3(e)(iv) hereof but subject to the Company's
right to suspend the use of the related Prospectus pursuant to Section 2(b) on
the terms and subject to the conditions set forth in such Section 2(b), use its
reasonable best efforts to prepare and file with the SEC a supplement or
post-effective amendment to a Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. The
Company agrees to notify the Holders to suspend use of the Prospectus as
promptly as practicable after the occurrence of such an event, and the Holders
hereby agree to suspend use of the Prospectus until the Company has amended or
supplemented the Prospectus to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement, provide copies of such document to
the Representative and its counsel (and, in the case of a Shelf Registration
11
Statement, the Holders and their counsel), and make such of the representatives
of the Company as shall be reasonably requested by the Representative or its
counsel (and, in the case of a Shelf Registration Statement, the Holders or
their counsel) available for discussion of such document, and shall not at any
time file or make any amendment to the Registration Statement, any Prospectus or
any document which is to be incorporated by reference into a Registration
Statement or a Prospectus, or any amendment of or supplement to a Registration
Statement or a Prospectus of which the Representative and counsel to the Initial
Purchasers (and, in the case of a Shelf Registration Statement, the Holders and
their counsel) shall not have previously been advised and furnished a copy or to
which the Representative or counsel to the Initial Purchasers (and, in the case
of a Shelf Registration Statement, the Holders or their counsel) shall
reasonably object.
(k) obtain a CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, not later than the effective date of
a Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture
Act of 1939, as amended (the "TIA"), in connection with the registration of the
Exchange Securities or Registrable Securities, as the case may be, cooperate
with the Trustee and the Holders to effect such changes to the Indenture as may
be required for the Indenture to be so qualified in accordance with the terms of
the TIA and execute, and use its best efforts to cause the Trustee to execute,
all documents as may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable Securities, any
Initial Purchaser participating in any disposition pursuant to such Shelf
Registration Statement, and attorneys and accountants designated by the Holders
and reasonably acceptable to the Company and in a manner that is reasonable and
customary for shelf offerings by companies regularly filing reports under the
Securities Exchange Act of 1934, as amended, all material financial and other
pertinent records and documents of the Company, cause the appropriate officers
of the Company to make themselves reasonably available for "due diligence"
conferences of the nature customary in connection with shelf offerings by
companies regularly filing reports under the Securities Exchange Act of 1934, as
amended, and cause the officers, directors and employees of the Company to
supply all material information reasonably requested by any such representative
of the Holders, Initial Purchaser, attorney or accountant in connection with a
Shelf Registration Statement;
(n) use its best efforts to cause the Exchange Securities or
Registrable Securities, as the case may be, to be rated by two nationally
recognized statistical rating organizations (as such term is defined in Rule
436(g)(2) under the 0000 Xxx);
(o) if reasonably requested by any Holder of Registrable
Securities covered by a Registration Statement, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information with respect
to such Holder as such Holder reasonably requests to be included therein and
(ii) make all required filings of such Prospectus supplement or such
post-
12
effective amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such filing; and
(p) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith (including
those requested by the Holders of a majority of the Registrable Securities being
sold) in order to expedite or facilitate the disposition of such Registrable
Securities including, but not limited to, an Underwritten Offering and in such
connection, (i) to the extent possible, make such representations and warranties
to the Holders and any Underwriters of such Registrable Securities with respect
to the business of the Company and its subsidiaries, the Registration Statement,
Prospectus and documents incorporated by reference or deemed incorporated by
reference, if any, in each case, in form, substance and scope as are customarily
made by issuers to underwriters in underwritten offerings and confirm the same
if and when requested, (ii) obtain opinions of counsel to the Company (which
counsel and opinions, in form, scope and substance, shall be reasonably
satisfactory to the Holders and such Underwriters and their respective counsel)
addressed to each selling Holder and Underwriters of Registrable Securities,
covering the matters customarily covered in opinions requested in underwritten
offerings, (iii) obtain "cold comfort" letters from the independent certified
public accountants of the Company (and, if necessary, any other certified public
accountant of any subsidiary of the Company, or of any Person or business
acquired by the Company for which financial statements and financial data are or
are required to be included in the Registration Statement or in the documents
incorporated or deemed to be incorporated therein) addressed to each selling
Holder and Underwriter of Registrable Securities, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings, and (iv) deliver
such documents and certificates as may be reasonably requested by the Holders of
a majority in principal amount of the Registrable Securities being sold or the
Underwriters, and which are customarily delivered in underwritten offerings to
evidence the continued validity of the representations and warranties of the
Company made pursuant to clause (i) above and to evidence compliance with any
customary conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Securities to furnish to the Company such information
regarding the Holder and the proposed distribution by such Holder of such
Registrable Securities as the Company may from time to time reasonably request
in writing and the Company may exclude from such Shelf Registration Statement
the Securities of any Holders that refuse to comply with such request.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 3(e)(iv) hereof or upon receipt of any Voluntary
Suspension Notice pursuant to Section 2(b) hereof, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to such Shelf
Registration Statement until either (x) such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 3(i) hereof or
(y) solely in the case of a Voluntary Suspension Notice, the Company shall have
notified such Holder that disposition of Registrable Securities may be resumed
using the then current Prospectus, and, if so directed by the Company in the
case of clause (x), such Holder will deliver to the Company (at its expense) all
copies in its possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities current at
the time of receipt of such notice. If the Company
13
shall give any such notice to suspend the disposition of Registrable Securities
pursuant to a Registration Statement, the Company shall extend the period during
which the Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date of
the giving of such notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions or the Holders shall have received notice that disposition of
Registrable Securities may be resumed using the then current Prospectus as the
case may be. Anything herein to the contrary notwithstanding, the Company will
not be entitled to require Holders to discontinue the sale or other disposition
of Registrable Securities pursuant to a Shelf Registration Statement or to
suspend the use of the related Prospectus for more than 120 days (whether or not
consecutive) in any period of 12 consecutive months.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "UNDERWRITERS") that will
administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff of the SEC has taken the position that any
broker-dealer that receives Exchange Securities in the Exchange Offer in
exchange for Securities that were acquired by such broker-dealer for its own
account as a result of market-making or other trading activities (a
"PARTICIPATING Broker-Dealer"), may be deemed to be an "underwriter" within the
meaning of the 1933 Act and must deliver a prospectus meeting the requirements
of the 1933 Act in connection with any resale of such Exchange Securities.
The Company understands that it is the Staff's position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Exchange Securities, without
naming the Participating Broker-Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligation under the 1933
Act in connection with resales of Exchange Securities for their own accounts, so
long as the Prospectus otherwise meets the requirements of the 1933 Act.
(b) In light of the above, notwithstanding the other provisions of
this Agreement, the Company agrees that the provisions of this Agreement as they
relate to a Shelf Registration shall also apply to an Exchange Offer
Registration to the extent, and with such reasonable modifications thereto as
may be reasonably requested by the Representative or by one or more
Participating Broker-Dealers, in each case as provided in clause (ii) below, in
order to expedite or facilitate the disposition of any Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff recited
in Section 4(a) above; provided that:
(i) the Company shall not be required to amend
or supplement the Prospectus contained in the Exchange Offer
Registration Statement, as would otherwise be contemplated by
Section 3(i), for a period exceeding 180 days after
14
the last Exchange Date (as such period may be extended
pursuant to the penultimate paragraph of Section 3 of this
Agreement) and Participating Broker-Dealers shall not be
authorized by the Company to deliver and shall not deliver
such Prospectus after such period in connection with the
resales contemplated by this Section 4; and
(ii) the application of the Shelf Registration
procedures set forth in Section 3 of this Agreement to an
Exchange Offer Registration, to the extent not required by the
positions of the Staff of the SEC or the 1933 Act and the
rules and regulations thereunder, will be in conformity with
the reasonable request to the Company by the Representative or
with the reasonable request in writing to the Company by one
or more broker-dealers who certify to the Representative and
the Company in writing that they anticipate that they will be
Participating Broker-Dealers; and provided further that, in
connection with such application of the Shelf Registration
procedures set forth in Section 3 to an Exchange Offer
Registration, the Company shall be obligated (x) to deal only
with one entity representing the Participating Broker-Dealers,
which shall be Xxxxxx Xxxxxxx & Co. Incorporated unless it
elects not to act as such representative, (y) to pay the fees
and expenses of only one counsel representing the
Participating Broker-Dealers, which shall be counsel to the
Initial Purchasers unless such counsel elects not to so act
and (z) to cause to be delivered only one, if any, "cold
comfort" or similar letter relating to the Company (plus only
one, if any, "cold comfort" or similar letter with respect to
any other Person or businesses whose financial statements are
included or incorporated or deemed to be incorporated by
reference in the Exchange Offer Registration Statement) with
respect to the Prospectus in the form existing on the last
Exchange Date and with respect to each subsequent amendment or
supplement, if any, effected during the period specified in
clause (i) above.
(c) The Representative shall have no liability to the Company or
any Holder with respect to any request that it may make pursuant to Section 4(b)
above.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Initial
Purchasers, each Holder and each Person, if any, who controls any Initial
Purchaser or any Holder within the meaning of either Section 15 of the 1933 Act
or Section 20 of the 1934 Act, or is under common control with, or is controlled
by, any Initial Purchaser or any Holder, from and against all losses, claims,
damages and liabilities (including, without limitation but subject to Section
5(c) below, any legal or other expenses reasonably incurred by any Initial
Purchaser, any Holder or any such controlling or affiliated Person in connection
with defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to which Exchange
Securities or Registrable Securities were registered under the 1933 Act,
including all documents incorporated or deemed to be incorporated therein by
reference, 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 not misleading, or caused by any untrue statement or alleged untrue
15
statement of a material fact contained in any 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 necessary to make the statements therein, in light of the
circumstances under which they were, made not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to the Initial Purchasers or any Holder furnished to the Company in
writing through Xxxxxx Xxxxxxx & Co. Incorporated or any selling Holder,
respectively, expressly for use therein. In connection with any Underwritten
Offering permitted by Section 3, the Company will also indemnify the
Underwriters, if any, selling brokers, dealers and similar securities industry
professionals participating in the distribution, their officers and directors
and each Person who controls any such Persons (within the meaning of the 1933
Act and the 0000 Xxx) to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any Registration
Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Initial Purchasers and the other selling
Holders, and each of their respective directors, each of the officers of the
Company who sign the Registration Statement and each Person, if any, who
controls the Company, any Initial Purchaser and any other selling Holder within
the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act
to the same extent as the foregoing indemnity from the Company to the Initial
Purchasers and the Holders, but only with reference to information relating to
such Holder furnished to the Company in writing by such Holder expressly for use
in any Registration Statement (or any amendment thereto) or any Prospectus (or
any amendment or supplement thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to either paragraph (a) or paragraph (b) above,
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 connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (a) the fees and expenses of more than one separate
firm (in addition to one firm acting as local counsel) for the Initial
Purchasers and all Persons, if any, who control any Initial Purchasers within
the meaning of either Section 15 of the 1933 Act or Xxxxxxx 00 xx xxx 0000 Xxx,
(x) the fees and expenses of more than one separate firm (in addition to one
firm acting as 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 (c) the fees and expenses
of more than one separate firm (in
16
addition to one firm acting as local counsel) for all Holders and all Persons,
if any, who control any Holders within the meaning of either such Section, and
that all such fees and expenses shall be reimbursed as they are incurred. In
such case involving the Initial Purchasers and Persons who control the Initial
Purchasers, such firm shall be designated in writing by Xxxxxx Xxxxxxx & Co.
Incorporated. In such case involving the Holders and such Persons who control
Holders, such firm shall be designated in writing by the Majority Holders. In
all other cases, such firm shall be designated 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 for such fees
and expenses of counsel 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 such 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) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 5 is unavailable to an Indemnified Party or
insufficient in respect of any losses, claims, damages or liabilities, 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, claims, damages or
liabilities in such proportion as is appropriate to reflect 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, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of the
Company and the Holders shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Holders 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 Section 5(d) are several in proportion to the respective
principal amount of Registrable Securities of such Holders that were registered
pursuant to a Registration Statement.
(e) The Company and each Holder agree that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount paid
or payable by an Indemnified Party as a result of the losses, claims, damages
and liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably
17
incurred by such Indemnified Party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 5, no
Holder shall be required to indemnify or contribute any amount in excess of the
amount by which the total price at which Registrable Securities were sold by
such Holder exceeds the amount of any damages that such Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 5 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.
(f) The indemnity and contribution provisions contained in this
Section 5 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 the Initial Purchasers, any Holder or any Person controlling any of the
Initial Purchasers or any Holder, or by or on behalf of the Company, its
officers or directors or any Person controlling the Company, (iii) acceptance of
any of the Exchange Securities and (iv) any sale of Registrable Securities
pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not entered into,
and on or after the date of this Agreement will not enter into, any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's
other issued and outstanding securities under any such 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 at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent; provided, however, that no amendment, modification,
supplement, waiver or consent to any departure from the provisions of Section 5
hereof shall be effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with respect to the Initial
Purchasers, c/o Morgan Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxx Xxxxx; and (ii) if to the Company, initially at
the Company's address set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 6(c).
18
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement and such Person shall be entitled to receive the benefits hereof. The
Representative and the Initial Purchasers (in their respective capacities as
Representative and Initial Purchasers) shall have no liability or obligation to
the Company with respect to any failure by a Holder to comply with, or any
breach by any Holder of, any of the obligations of such Holder under this
Agreement.
(e) Purchases and Sales of Securities. The Company shall not, and
shall use its best efforts to cause its affiliates (as defined in Rule 405 under
the 0000 Xxx) not to, purchase and then resell or otherwise transfer any
Securities.
(f) Third Party Beneficiary. The Holders and the Initial
Purchasers shall be third party beneficiaries to the agreements made hereunder
between the Company, on the one hand, and the Representative, on the other hand,
and each of them shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights or
the rights of Holders or Initial Purchasers, respectively hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by the laws of
the State of New York.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
JEFFERSON-PILOT CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
Confirmed and accepted as of the date
first above written:
XXXXXX XXXXXXX & CO.
INCORPORATED
Acting severally on behalf of itself
and the several Initial Purchasers named in the
Purchase Agreement.
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Director
20
