EXHIBIT 4.4
GATX CORPORATION
5% Senior Convertible Notes due 2023
Fully and Unconditionally Guaranteed
by
GATX Financial Corporation
REGISTRATION RIGHTS AGREEMENT
New York, New York
August 15, 2003
X.X. Xxxxxx Securities Inc.
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
As Representatives of the Initial Purchasers
Named in Schedule I to the Purchase Agreement
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
GATX Corporation, a New York corporation (the "Company"),
proposes to issue and sell (such issuance and sale, the "Initial Placement") to
the several parties named in Schedule I to the Purchase Agreement (the "Initial
Purchasers") for whom you (the "Representatives") are acting as representatives,
upon the terms set forth in a purchase agreement dated August 12, 2003 (the
"Purchase Agreement"), $125,000,000 aggregate principal amount of its 5% Senior
Convertible Notes due 2023 (the "Notes"). GATX Financial Corporation, a Delaware
corporation (the "Guarantor"), will fully and unconditionally guarantee the
Notes (the "Guarantee" and, together with the Notes, the "Securities").
The Notes will be convertible into shares of Common Stock (as
defined herein) under the circumstances provided in the Indenture (as defined
herein), at the conversion price set forth in the Offering Memorandum (as
defined herein), as the same may be adjusted from time to time pursuant to the
Indenture.
As an inducement to you to enter into the Purchase Agreement
and in satisfaction of a condition to your obligations thereunder, the Issuers
(as defined herein) agree with you, (i) for your benefit and (ii) for the
benefit of the holders from time to time of the Securities and the Common Stock
issuable upon conversion of the Notes (including you), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have the respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized terms shall have
the following meanings:
"Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Affiliate" of any specified person means any other person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), as used with respect to any
person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such person,
whether through the ownership of voting securities or by agreement or otherwise.
"Broker-Dealer" means any broker or dealer registered as such
under the Exchange Act.
"Business Day" has the meaning set forth in the Indenture.
"Closing Date" means August 15, 2003.
"Common Stock" means the common stock, par value $.625 per
share, of the Company, as it exists on the date of this Agreement and any other
shares of capital stock or other securities of the Company into which such
Common Stock may be reclassified or changed, together with any and all other
securities which may from time to time be issuable upon conversion of Notes.
"Damages Payment Date" means, with respect to the Securities
or the Common Stock issuable upon conversion of the Notes, as applicable, each
Interest Payment Date; and in the event that any Security, or portion thereof,
is surrendered for purchase by the Company and not withdrawn pursuant to a
Fundamental Change Offer (as defined in the Indenture), the relevant Fundamental
Change Payment Date (as defined in the Indenture), as the case may be, shall
also be a Damages Payment Date with respect to such Security, or portion
thereof, unless the Indenture provides that accrued and unpaid interest on the
Security (or portion thereof) to be repurchased, as the case may be, is to be
paid to the person who was the Record Holder thereof on a record date prior to
such Fundamental Change Payment Date, as the case may be, in which case the
relevant Damages Payment Date shall be the date on which interest is payable to
such Record Holder.
"Deadline" has the meaning set forth in Section 3(u) hereof.
"Default Rate" means the rate of interest payable with respect
to overdue amounts on the Securities pursuant to Section 7.1 of the Indenture.
"DTC" means The Depository Trust Company.
"Election" has the meaning set forth in Section 3(u) hereof.
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"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Final Maturity Date" means August 15, 2023.
"Guarantee" has the meaning set forth in the preamble hereto.
"Holder" means a person who is a holder or beneficial owner
(including the Initial Purchasers) of any Securities or shares of Common Stock
issued upon conversion of Notes; provided that, unless otherwise expressly
stated herein, only registered holders of Securities or Common Stock issued on
conversion of the Notes shall be counted for purposes of calculating any
proportion of holders entitled to take any action or give notice pursuant to
this Agreement.
"Indenture" means the Indenture relating to the Securities
dated as of August 15, 2003, among the Company, the Guarantor and JPMorgan Chase
Bank, as trustee, as the same may be amended from time to time in accordance
with the terms thereof.
"Initial Placement" has the meaning set forth in the preamble
hereto.
"Initial Purchasers" has the meaning set forth in the preamble
hereto.
"Interest Payment Date" shall mean February 15 and August 15.
"Issuers" means, collectively, the Company and the Guarantor.
"Liquidated Damages" has the meaning set forth in Section 2(e)
hereof.
"Losses" has the meaning set forth in Section 5(d) hereof.
"Majority Holders" means, except as provided in Section 6(b)
hereof, the Holders of a majority of the then outstanding aggregate principal
amount of Securities registered under a Shelf Registration Statement; provided
that Holders of Common Stock issued upon conversion of Notes shall be deemed to
be Holders of the aggregate principal amount of Securities from which such
Common Stock was converted; and provided, further, that Securities or Common
Stock which have been sold or otherwise transferred pursuant to the Shelf
Registration Statement shall not be included in the calculation of Majority
Holders.
"Majority Underwriting Holders" means, with respect to any
Underwritten Offering, the Holders of a majority of the then outstanding
aggregate principal amount of Securities registered under any Shelf Registration
Statement whose Securities are or are to be included in such Underwritten
Offering; provided that Holders of Common Stock issued upon conversion of the
Notes shall be deemed to be Holders of the aggregate principal amount of
Securities from which such Common Stock was converted.
"Managing Underwriters" means the Underwriter or Underwriters
that shall administer an Underwritten Offering.
"NASD" has the meaning set forth in Section 3(i) hereof.
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"Notes" has the meaning set forth in the preamble hereto.
"Notice and Questionnaire" means a Selling Securityholder
Notice and Questionnaire substantially in the form of Exhibit A hereto.
"Notice Holder" shall mean, on any date, any Holder of
Transfer Restricted Securities that has delivered a completed and signed Notice
and Questionnaire to the Company on or prior to such date.
"Offering Memorandum" means the Final Memorandum as defined in
the Purchase Agreement.
"Person" has the meaning set forth in the Indenture.
"Prospectus" means the prospectus included in any Shelf
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities or Common Stock issuable upon
conversion of the Notes covered by such Shelf Registration Statement, and all
amendments and supplements to such prospectus, including all documents
incorporated or deemed to be incorporated by reference in such prospectus.
"Purchase Agreement" has the meaning set forth in the preamble
hereto.
"Record Holder" means (i) with respect to any Damages Payment
Date which occurs on an Interest Payment Date, each person who is registered on
the books of the registrar as the holder of Securities at the close of business
on the record date with respect to such Interest Payment Date and (ii) with
respect to any Damages Payment Date relating to the Common Stock issued upon
conversion of the Notes, each person who is a holder of record of such Common
Stock fifteen days prior to the Damages Payment Date.
"Registration Default" has the meaning set forth in Section
2(e) hereof.
"Representatives" has the meaning set forth in the preamble
hereto.
"Rule 144" means Rule 144 (or any successor provision) under
the Act.
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning set forth in the preamble hereto.
"Shelf Registration" means a registration effected pursuant to
Section 2 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 2(c) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company filed pursuant to the provisions of Section 2 hereof
which covers some or all of the
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Securities and the Common Stock issuable upon conversion of the Notes, as
applicable, on Form S-3 or on another appropriate form for an offering to be
made on a delayed or continuous basis pursuant to Rule 415 under the 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
documents incorporated or deemed to be incorporated by reference therein.
"Suspension Period" has the meaning set forth in Section 2(d)
hereof.
"Transfer Restricted Securities" means each Security and each
share of Common Stock issuable or issued upon conversion of the Notes until the
date on which such Security or share of Common Stock, as the case may be, (i)
has been transferred pursuant to the Shelf Registration Statement or another
registration statement covering such Security or share of Common Stock which has
been filed with the SEC pursuant to the Act, in either case after such
registration statement has become effective and while such registration
statement is effective under the Act, (ii) has been transferred pursuant to Rule
144 under the Act (or any similar provision then in force) or (iii) may be sold
or transferred pursuant to Rule 144(k) under the Act (or any successor provision
then in force).
"Trustee" means the trustee with respect to the Securities
under the Indenture.
"Underwriter" means any underwriter of the Securities or
Common Stock issuable upon conversion of the Notes in connection with an
offering thereof under a Shelf Registration Statement.
"Underwritten Offering" means an offering in which the
Securities or Common Stock issued upon conversion of the Notes are sold to an
Underwriter or with the assistance of an Underwriter for reoffering to the
public.
All references in this Agreement to financial statements and
schedules and other information which is "contained", "included", or "stated" in
the Shelf Registration Statement, any preliminary Prospectus or Prospectus (and
all other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated or deemed to be incorporated by reference in such Shelf
Registration Statement, preliminary Prospectus or Prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to the
Shelf Registration Statement, any preliminary Prospectus or Prospectus shall be
deemed to mean and include any document filed with the SEC under the Exchange
Act, after the date of such Shelf Registration Statement, preliminary Prospectus
or Prospectus, as the case may be, which is incorporated or deemed to be
incorporated by reference therein.
2. Shelf Registration Statement.
(a) The Issuers shall prepare and file with the SEC within 90
days following the Closing Date a Shelf Registration Statement with
respect to resales of the Transfer Restricted Securities by the Holders
from time to time in accordance with the methods of distribution
elected by such Holders and set forth in such Shelf Registration
Statement (subject to Section 3(u)) and thereafter shall use their
reasonable best efforts to cause
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such Shelf Registration Statement to be declared effective under the
Act within 180 days after the Closing Date; provided that if any
Securities are issued upon exercise of the over-allotment option
granted to the Initial Purchasers in the Purchase Agreement and the
date on which such Securities are issued occurs after the Closing Date,
the Issuers will take such steps, prior to the effective date of the
Shelf Registration Statement, to ensure that such Securities and Common
Stock issuable upon conversion of the Notes are included in the Shelf
Registration Statement on the same terms as the Securities issued on
the Closing Date. The Issuers shall supplement or amend the Shelf
Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Issuers
for the Shelf Registration Statement, or by the Act, the Exchange Act
or the SEC.
(b) (i) Not less than 30 calendar days prior to the
effectiveness of the Shelf Registration Statement, the Issuers
shall mail the Notice and Questionnaire to the Holders of
Transfer Restricted Securities. The Issuers shall take action
to name each Holder that is a Notice Holder as of the date
that is 10 calendar days prior to the effectiveness of the
Shelf Registration Statement so that such Holder is named as a
selling security holder in the Shelf Registration Statement at
the time of its effectiveness and is permitted to deliver the
Prospectus forming a part thereof as of such time to
purchasers of such Holder's Transfer Restricted Securities in
accordance with applicable law. The Issuers shall be under no
obligation to name any Holder that is not a Notice Holder as a
selling security holder in the Shelf Registration Statement.
(i) After the Shelf Registration Statement has become
effective, the Issuers shall, upon the request of any Holder
of Transfer Restricted Securities, promptly send a Notice and
Questionnaire to such Holder. From and after the date on which
the Shelf Registration Statement has become effective, the
Issuers shall (i) as promptly as is practicable after the date
a completed and signed Notice and Questionnaire and such other
information as the Issuers may reasonably request is delivered
to the Issuers, and in any event within ten Business Days
after such date, prepare and file with the SEC (x) a
supplement to the Prospectus and (y) any other document
required by applicable law, so that the Holder delivering such
Notice and Questionnaire is named as a selling security holder
in the Shelf Registration Statement and is permitted to
deliver the Prospectus to purchasers of such Holder's Transfer
Restricted Securities in accordance with applicable law;
provided, that if the Issuers are required to file
post-effective amendments to the Shelf Registration Statement
for this purpose, the Issuers will file such post-effective
amendments no less frequently than once every 30 days, and
(ii) use their reasonable best efforts to cause any such
post-effective amendment to become effective under the Act as
promptly as is practicable; provided, however, that if a
Notice and Questionnaire is delivered to the Issuers during a
Suspension Period, the Issuers shall not be obligated to take
the actions set forth in clauses (i) and (ii) until the
termination of such Suspension Period.
(c) The Issuers shall use their reasonable best efforts to
keep the Shelf Registration Statement continuously effective under the
Act in order to permit the
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Prospectus forming a part thereof to be usable, subject to Section
2(d), by all Notice Holders until the earliest of (i) the second
anniversary of the Closing Date or, if later, the second anniversary of
the last day on which any Securities are issued upon exercise of the
over-allotment option granted to the Initial Purchasers in the Purchase
Agreement, (ii) the date on which all the Securities or Common Stock
issued or issuable upon conversion of the Notes may be sold by
non-affiliates ("affiliates" for such purpose having the meaning set
forth in Rule 144) of the Issuers pursuant to paragraph (k) of Rule 144
(or any successor provision) promulgated by the SEC under the Act,
(iii) the date as of which all the Securities or Common Stock issued or
issuable upon conversion of the Notes have been transferred pursuant to
Rule 144 under the Act (or any similar provision then in force) and
(iv) such date as of which all the Securities or the Common Stock
issued or issuable upon conversion of the Notes have been sold pursuant
to the Shelf Registration Statement (in any such case, such period
being called the "Shelf Registration Period").
The Issuers will, (x) subject to Section 2(d),
prepare and file with the SEC such amendments and post-effective
amendments to the Shelf Registration Statement as may be necessary to
keep the Shelf Registration Statement continuously effective for the
Shelf Registration Period, (y) subject to Section 2(d), cause the
related Prospectus to be supplemented by any required supplement, and
as so supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Act and (z) comply in all material
respects with the provisions of the Act with respect to the disposition
of all securities covered by the Shelf Registration Statement during
the applicable period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Shelf Registration
Statement as so amended or such Prospectus as so supplemented.
(d) The Issuers may suspend the use of the Prospectus for a
period not to exceed 45 days in any three-month period or for three
periods not to exceed an aggregate of 90 days in any 12-month period
(the "Suspension Period") for valid business reasons, to be determined
by the Issuers in their sole reasonable judgment (not including
avoidance of the Issuers' obligations hereunder), including, without
limitation, the acquisition or divestiture of assets, public filings
with the SEC, pending corporate developments and similar events;
provided that the Issuers promptly thereafter comply with the
requirements of Section 3(j) hereof, if applicable; provided, further,
that the existence of a Suspension Period will not prevent the
occurrence of a Registration Default or otherwise limit the obligation
of the Issuers to pay Liquidated Damages.
(e) If (i) the Shelf Registration Statement is not filed with
the SEC on or prior to 90 days after the Closing Date, (ii) the Shelf
Registration Statement has not been declared effective by the SEC
within 180 days after the Closing Date, or (iii) the Shelf Registration
Statement is filed and declared effective but shall thereafter cease to
be effective (without being succeeded immediately by a replacement
shelf registration statement filed and declared effective) or usable
for the offer and sale of Transfer Restricted Securities for a period
of time (including any Suspension Period) which shall exceed 90 days in
the aggregate in any 12 month period during the period beginning on the
Closing Date and ending on the second anniversary of the Closing Date
or, if later, the second anniversary of the last date on which any
Securities are issued upon exercise of the Initial Purchasers'
over-allotment option (each such event referred to in clauses (i)
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through (iii), a "Registration Default"), the Issuers will pay
liquidated damages ("Liquidated Damages") to each Holder of Transfer
Restricted Securities who has complied with such Holder's obligations
under this Agreement. The amount of Liquidated Damages payable during
any period in which a Registration Default has occurred and is
continuing is the amount which is equal to one quarter of one percent
(25 basis points) per annum per $1,000 principal amount of Securities
or $2.50 per annum per 42.2092 shares of Common Stock (subject to
adjustment in the event of a stock split, stock recombination, stock
dividend and the like) constituting Transfer Restricted Securities for
the first 90 days during which a Registration Default has occurred and
is continuing and one-half of one percent (50 basis points) per annum
per $1,000 principal amount of Securities or $5.00 per annum per
42.2092 shares of Common Stock (subject to adjustment as set forth
above) constituting Transfer Restricted Securities for any additional
days during which a Registration Default has occurred and is continuing
(in each case subject to further adjustment from time to time in the
event of a stock split, stock recombination, stock dividend and the
like), it being understood that all calculations pursuant to this and
the preceding sentence shall be carried out to five decimals. Following
the cure of all Registration Defaults, Liquidated Damages will cease to
accrue with respect to such Registration Default. Liquidated Damages
shall cease to accrue in respect of any Transfer Restricted Security
when it shall cease to be such. All accrued Liquidated Damages shall be
paid by wire transfer of immediately available funds or by federal
funds check by the Issuers on each Damages Payment Date and Liquidated
Damages will be calculated on the basis of a 360-day year consisting of
twelve 30-day months and the actual number of days elapsed in any
partial month. In the event that any Liquidated Damages are not paid
when due, then to the extent permitted by law, such overdue Liquidated
Damages, if any, shall bear interest until paid at the Default Rate,
compounded semi-annually. The parties hereto agree that the Liquidated
Damages provided for in this Section 2(e) constitute a reasonable
estimate of the damages that may be incurred by Holders by reason of a
Registration Default.
(f) All of the Issuers' obligations (including, without
limitation, the obligation to pay Liquidated Damages) set forth in the
preceding paragraph which are outstanding or exist with respect to any
Transfer Restricted Security at the time such security ceases to be a
Transfer Restricted Security shall survive until such time as all such
obligations with respect to such security shall have been satisfied in
full.
(g) Immediately upon the occurrence or the termination of a
Registration Default, the Issuers shall give the Trustee, in the case
of notice with respect to the Securities, and the transfer and paying
agent for the Common Stock, in the case of notice with respect to
Common Stock issued or issuable upon conversion of the Notes, notice of
such commencement or termination, of the obligation to pay Liquidated
Damages with regard to the Securities and Common Stock and the amount
thereof and of the event giving rise to such commencement or
termination (such notice to be contained in an Officers' Certificate
(as such term is defined in the Indenture)), and prior to receipt of
such Officers' Certificate the Trustee and such transfer and paying
agent shall be entitled to assume that no such commencement or
termination has occurred, as the case may be.
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(h) All Securities which are purchased or otherwise acquired
by the Issuers or any of their subsidiaries or affiliates (as defined
in Rule 144) prior to the Final Maturity Date shall be delivered to the
Trustee for cancellation and the Issuers may not hold or resell such
Securities or issue any new Securities to replace any such Securities
or any Securities that any Holder has converted pursuant to the
Indenture. All shares of Common Stock issued upon conversion of the
Notes which are repurchased or otherwise acquired by the Issuers or any
of their subsidiaries or affiliates (as defined in Rule 144) at any
time while such shares are "restricted securities" within the meaning
of Rule 144 shall not be resold or otherwise transferred except
pursuant to a registration statement which has been declared effective
under the Act.
3. Registration Procedures. In connection with any Shelf
Registration Statement, the following provisions shall apply:
(a) The Issuers shall:
(i) furnish to the Representatives, prior to the
filing thereof with the SEC, a copy of any Shelf Registration
Statement, and each amendment thereof, and a copy of any
Prospectus, and each amendment or supplement thereto
(excluding amendments caused by the filing of a report under
the Exchange Act), and shall use their reasonable best efforts
to reflect in each such document, when so filed with the SEC,
such comments as the Representatives reasonably and promptly
propose; and
(ii) include information regarding the Notice Holders
and the methods of distribution they have elected for their
Transfer Restricted Securities provided to the Issuers in
Notice and Questionnaires as necessary to permit such
distribution by the methods specified therein.
(b) Subject to Section 2(d), the Issuers shall ensure that (i)
any Shelf Registration Statement and any amendment thereto and any
Prospectus forming a part thereof and any amendment or supplement
thereto comply in all material respects with the Act and the rules and
regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading and (iii) any Prospectus forming a part of any
Shelf Registration Statement, and any amendment or supplement to such
Prospectus, does not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided that the Issuers make no representation with
respect to information with respect to any Underwriter or any Holder
required to be included in any Shelf Registration Statement or
Prospectus pursuant to the Act or the rules and regulations thereunder
and which information is included therein in reliance upon and in
conformity with information furnished to the Issuers in writing by such
Underwriter or Holder.
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(c) The Issuers, as promptly as reasonably practicable, shall
advise the Representatives and each Notice Holder and, if requested by
you or any such Holder, confirm such advice in writing:
(i) when a Shelf Registration Statement and any
amendment thereto has been filed with the SEC and when the
Shelf Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of any request by the SEC following
effectiveness of the Shelf Registration Statement for
amendments or supplements to the Shelf Registration Statement
or the Prospectus or for additional information (other than
any such request relating to a review of the Issuers' Exchange
Act filings);
(iii) of the determination by the Issuers that a
post-effective amendment to the Shelf Registration Statement
would be appropriate;
(iv) of the commencement or termination of (but not
the nature of or details concerning) any Suspension Period;
(v) of the issuance by the SEC of any stop order
suspending the effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for that
purpose;
(vi) of the receipt by the Issuers of any
notification with respect to the suspension of the
qualification of the Transfer Restricted Securities included
in any Shelf Registration Statement for sale in any
jurisdiction or the initiation or threat of any proceeding for
such purpose; and
(vii) of the happening of (but not the nature of or
details concerning) any event that requires the making of any
changes in the Shelf Registration Statement or the Prospectus
so that, as of such date, the statements therein are not
misleading and the Shelf Registration Statement or the
Prospectus, as the case may be, does not include an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of
the circumstances under which they were made) not misleading.
(d) The Issuers shall use their reasonable best efforts to
obtain the withdrawal of any order suspending the effectiveness of any
Shelf Registration Statement or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Transfer
Restricted Securities for offer or sale in any jurisdiction at the
earliest possible time.
(e) The Issuers shall promptly furnish to each Notice Holder,
without charge, at least one copy of any Shelf Registration Statement
and any post-effective amendment thereto, including all exhibits
(including those incorporated by reference), financial statements and
schedules.
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(f) The Issuers shall, during the Shelf Registration Period,
promptly deliver to each Initial Purchaser, each Notice Holder and any
sales or placement agent or underwriters acting on their behalf,
without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in any Shelf Registration Statement
(excluding documents incorporated by reference), and any amendment or
supplement thereto, as such person may reasonably request; and, except
as provided in Sections 2(d) and 3(s) hereof, the Issuers consent to
the use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders in connection with the offering and sale of
the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto.
(g) Prior to any offering of Transfer Restricted Securities
pursuant to any Shelf Registration Statement, the Issuers shall
register or qualify or cooperate with the Notice Holders and their
respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such Transfer
Restricted Securities for offer and sale, under the securities or blue
sky laws of such jurisdictions within the United States as any such
Notice Holders reasonably request and shall maintain such qualification
in effect so long as required and do any and all other acts or things
necessary or advisable to enable the offer and sale in such
jurisdictions of the Transfer Restricted Securities covered by such
Shelf Registration Statement; provided, however, that the Issuers will
not be required to (A) qualify generally to do business as a foreign
corporation or as a dealer in securities in any jurisdiction where it
is not then so qualified or to (B) take any action which would subject
it to service of process or taxation in any such jurisdiction where it
is not then so subject.
(h) The Issuers shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing
Transfer Restricted Securities sold pursuant to any Shelf Registration
Statement free of any restrictive legends and in such denominations
permitted by the Indenture and registered in such names as Holders may
request at least two Business Days prior to settlement of sales of
Transfer Restricted Securities pursuant to such Shelf Registration
Statement.
(i) Subject to the exceptions contained in (A) and (B) of
Section 3(g) hereof, the Issuers shall use their reasonable best
efforts to cause the Transfer Restricted Securities covered by the
applicable Shelf Registration Statement to be registered with or
approved by such other federal, state and local governmental agencies
or authorities, and self-regulatory organizations in the United States
as may be necessary to enable the Holders to consummate the disposition
of such Transfer Restricted Securities as contemplated by the Shelf
Registration Statement; without limitation to the foregoing, the
Issuers shall make all filings and provide all such information as may
be required by the National Association of Securities Dealers, Inc.
(the "NASD") in connection with the offering under the Shelf
Registration Statement of the Transfer Restricted Securities
(including, without limitation, such as may be required by NASD Rule
2710 or 2720), and shall cooperate with each Holder in connection with
any filings required to be made with the NASD by such Holder in that
regard.
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(j) Upon the occurrence of any event described in Section
3(c)(vii) hereof, the Issuers shall as soon as reasonably practicable
prepare and file with the SEC a post-effective amendment to any Shelf
Registration Statement or an amendment or supplement to the related
Prospectus or any document incorporated therein by reference or file a
document which is incorporated or deemed to be incorporated by
reference in such Shelf Registration Statement or Prospectus, as the
case may be, so that, as thereafter delivered to purchasers of the
Transfer Restricted Securities included therein, the Shelf Registration
Statement and the Prospectus, in each case as then amended or
supplemented, will not include an untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein (in the case of the
Prospectus in light of the circumstances under which they were made)
not misleading and, in the case of a post-effective amendment, use its
reasonable best efforts to cause it to become effective as promptly as
practicable; provided that the Issuers' obligations under this
paragraph (j) shall be suspended if the Issuers have suspended the use
of the Prospectus in accordance with Section 2(d) hereof and given
notice of such suspension to Notice Holders, it being understood that
the Issuers' obligations under this Section 3(j) shall be automatically
reinstated at the end of such Suspension Period.
(k) The Issuers shall use their reasonable best efforts to
provide, on or prior to the first Business Day following the effective
date of any Shelf Registration Statement hereunder, (i) a CUSIP number
for the Transfer Restricted Securities registered under such Shelf
Registration Statement and (ii) global certificates for such Transfer
Restricted Securities to the Trustee, in a form eligible for deposit
with DTC.
(l) The Issuers shall use their best efforts to comply with
all applicable rules and regulations of the SEC and shall make
generally available to its security holders as soon as practicable but
in any event not later than 50 days after the end of a 12-month period
(or 105 days, if such period is a fiscal year) after (i) the effective
date of the applicable Shelf Registration Statement, (ii) the effective
date of each post-effective amendment to any Shelf Registration
Statement, and (iii) the date of each filing by the Issuers with the
SEC of an Annual Report on Form 10-K that is incorporated by reference
or deemed to be incorporated by reference in the Shelf Registration
Statement, an earnings statement satisfying the provisions of Section
11(a) of the Act and Rule 158 promulgated by the SEC thereunder.
(m) The Issuers shall use their reasonable best efforts to
cause the Indenture to be qualified under the TIA (as defined in the
Indenture) in a timely manner.
(n) The Issuers shall cause all Common Stock issued or
issuable upon conversion of the Notes to be listed on each securities
exchange or quotation system on which the Common Stock is then listed
no later than the date the applicable Shelf Registration Statement is
declared effective and, in connection therewith, to make such filings
as may be required under the Exchange Act and to have such filings
declared effective as and when required thereunder.
-12-
(o) The Issuers may require each Holder of Transfer Restricted
Securities to be sold pursuant to any Shelf Registration Statement to
furnish to the Issuers such information regarding the Holder and the
distribution of such Transfer Restricted Securities sought by the
Notice and Questionnaire and such additional information as may, from
time to time, be required by the Act and the rules and regulations
promulgated thereunder, and the obligations of the Issuers to any
Holder hereunder shall be expressly conditioned on the compliance of
such Holder with such request.
(p) The Issuers shall, if reasonably requested, use their
reasonable best efforts to promptly incorporate in a Prospectus
supplement or post-effective amendment to a Shelf Registration
Statement (i) such information as the Majority Holders provide or, if
Transfer Restricted Securities are being sold in an Underwritten
Offering, as the Managing Underwriters or the Majority Underwriting
Holders reasonably agree should be included therein and provide to the
Issuers in writing for inclusion in the Shelf Registration Statement or
Prospectus, and (ii) such information as a Holder may provide from time
to time to the Issuers in writing for inclusion in a Prospectus or any
Shelf Registration Statement concerning such Holder and the
distribution of such Holder's Transfer Restricted Securities and, in
either case, shall make all required filings of such Prospectus
supplement or post-effective amendment promptly after being notified in
writing of the matters to be incorporated in such Prospectus supplement
or post-effective amendment, provided that the Issuers shall not be
required to take any action under this Section 3(p) that is not, in the
reasonable opinion of counsel for the Issuers, in compliance with
applicable law.
(q) The Issuers shall enter into such customary agreements
(including underwriting agreements) and take all other appropriate
actions as may be requested in order to expedite or facilitate the
registration or the disposition of the Transfer Restricted Securities,
and in connection therewith, if an underwriting agreement is entered
into, cause the same to contain indemnification and contribution
provisions and procedures no less favorable than those set forth in
Section 5 (or such other reasonable and customary provisions and
procedures acceptable to the Majority Underwriting Holders and the
Managing Underwriters, if any, with respect to all parties to be
indemnified pursuant to Section 5). The plan of distribution in the
Shelf Registration Statement and the Prospectus included therein shall
permit resales of Transfer Restricted Securities to be made by selling
security holders through underwriters, brokers and dealers, and shall
also include such other information as the Representatives may
reasonably request.
(r) The Issuers shall if reasonably requested in writing by
Majority Holders, by Majority Underwriting Holders or by the Managing
Underwriter:
(i) make reasonably available for inspection during
normal business hours by any Underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and
any attorney, accountant or other agent retained by any such
Underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Issuers
and their subsidiaries as is customary for due diligence
examinations in connection with public offerings;
-13-
(ii) cause the Issuers' officers, directors,
employees, accountants and auditors to supply all relevant
information reasonably requested by any such Underwriter,
attorney, accountant or agent in connection with any such
Shelf Registration Statement as is customary for similar due
diligence examinations; provided, however, that any
information that is designated in writing by the Issuers, in
good faith, as confidential at the time of delivery of such
information shall be kept confidential by the Holders or any
such Underwriter, attorney, accountant or agent, unless
disclosure thereof is made in connection with a court,
administrative or regulatory proceeding or required by law, or
such information has become available to the public generally
through the Issuers or through a third party without an
accompanying obligation of confidentiality;
(iii) deliver a letter, addressed to the selling
Holders and the Underwriters, if any, in which the Company
shall make such representations and warranties in form,
substance and scope as are customarily made by issuers to
Underwriters;
(iv) obtain opinions of counsel to the Issuers and
updates thereof (which counsel and opinions, in form, scope
and substance, shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling
Holder and the Underwriters, if any, covering such matters as
are customarily covered in opinions requested in public
offerings;
(v) obtain "cold comfort" letters and updates thereof
from the current and former independent certified public
accountants of the Company and/or the Guarantor (and, if
necessary, any other independent certified public accountants
of any subsidiary of the Company or the Guarantor or of any
business acquired by the Company or the Guarantor for which
financial statements and financial data are, or are required
to be, included in the Shelf Registration Statement),
addressed to each selling Holder (provided such Holder
furnishes the accountants, prior to the date such "cold
comfort" letter is required to be delivered, with such
representations as the accountants customarily require in
similar situations) and the Underwriters, if any, in customary
form and covering matters of the type customarily covered in
"cold comfort" letters in connection with primary underwritten
offerings; and
(vi) deliver such documents and certificates as may
be reasonably requested by the Majority Holders or, in the
case of an Underwritten Offering, the Majority Underwriting
Holders, and the Managing Underwriters, if any, including
those to evidence compliance with Section 3(j) and with any
customary conditions contained in the underwriting agreement
or other agreement entered into by the Company or the
Guarantor.
The foregoing actions set forth in clauses (iii),
(iv), (v) and (vi) of this Section 3(r) shall be performed at
(A) the effectiveness of such Shelf Registration Statement and
each post-effective amendment thereto and (B) each closing
under any underwriting or similar agreement as and to the
extent required thereunder.
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(s) Each Notice Holder agrees that, upon receipt of notice of
the happening of an event described in Sections 3(c)(ii) through and
including 3(c)(vii), each Holder shall forthwith discontinue (and shall
cause its agents and representatives to discontinue) disposition of
Transfer Restricted Securities and will not resume disposition of
Transfer Restricted Securities until such Holder has received copies of
an amended or supplemented Prospectus contemplated by Section 3(j)
hereof, or until such Holder is advised in writing by the Company or
the Guarantor that the use of the Prospectus may be resumed or that the
relevant Suspension Period has been terminated, as the case may be,
provided that, the foregoing shall not prevent the sale, transfer or
other disposition of Transfer Restricted Securities by a Notice Holder
in a transaction which is exempt from, or not subject to, the
registration requirements of the Act, so long as such Notice Holder
does not and is not required to deliver the applicable Prospectus or
Shelf Registration Statement in connection with such sale, transfer or
other disposition, as the case may be; and provided, further, that the
provisions of this Section 3(s) shall not prevent the occurrence of a
Registration Default or otherwise limit the obligation of the Issuers
to pay Liquidated Damages.
(t) The Issuers shall in connection with an Underwritten
Offering use their reasonable best efforts (i) if the Securities have
been rated prior to the initial sale of such Securities, to confirm
that such ratings will apply to the Securities covered by the Shelf
Registration Statement; or (ii) if the Securities were not previously
rated, to cause the Securities covered by the Shelf Registration
Statement to be rated with at least one nationally recognized
statistical rating agency, if so requested by the Majority Holders or
by any Managing Underwriters.
(u) In the event that any Broker-Dealer shall underwrite any
Securities or participate as a member of an underwriting syndicate or
selling group or "assist in the distribution" (within the meaning of
the NASD Rules) thereof, whether as a Holder of such Transfer
Restricted Securities or as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, the Issuers
shall assist such Broker-Dealer in complying with the NASD Rules,
including, without limitation, by:
(i) if the NASD Rules shall so require, engaging a
"qualified independent underwriter" (as defined in the NASD
Rules) to participate in the preparation of the Shelf
Registration Statement, to exercise usual standards of due
diligence with respect thereto and, if any portion of the
offering contemplated by the Shelf Registration Statement is
an Underwritten Offering or is made through a placement or
sales agent, to recommend the price of such Transfer
Restricted Securities;
(ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of
Underwriters provided in Section 5 hereof; and
(iii) providing such information to such
Broker-Dealer as may be required in order for such
Broker-Dealer to comply with the requirements of the NASD
Rules.
-15-
(iv) Anything herein to the contrary notwithstanding,
the Issuers will not be required to pay the costs and expenses
of, or to participate in the marketing or "road show"
presentations of, more than one Underwritten Offering
initiated at the request of the Holders of Securities or
shares of Common Stock issued or issuable upon conversion of
the Notes, or to effect more than one Underwritten Offering at
the request of such Holders. The Issuers will not be required
to pay the costs and expenses of, or to participate in the
marketing or "road show" presentations of, an Underwritten
Offering unless Holders of at least the Minimum Amount (as
defined below) of Securities and/or Common Stock issued or
issuable on conversion of the Notes have requested that such
Securities and/or shares of Common Stock be included in such
an Underwritten Offering. For purposes of this Agreement, the
"Minimum Amount" means 50% of the aggregate principal amount
of Notes originally issued under the Indenture; provided that,
for purposes of computing the Minimum Amount, Holders of
Common Stock issued upon conversion of Notes shall be deemed
to be holders of the aggregate principal amount of Notes which
were converted into those shares of Common Stock. Only Holders
of Securities or shares of Common Stock issued or issuable
upon conversion of the Notes which are Transfer Restricted
Securities shall be entitled to include such Securities or
shares of Common Stock in an Underwritten Offering and only
Transfer Restricted Securities shall be included in the
computation of the Minimum Amount. The Underwritten Offering
initiated by Holders as aforesaid shall include both
Securities and Common Stock if so requested by the Holders.
Upon receipt by the Company and/or the Guarantor, from Holders
of at least the Minimum Amount of Securities and/or Common
Stock issued or issuable upon conversion of the Notes, of a
request for an Underwritten Offering, the Issuers will, within
10 days thereafter, cause the Company to mail notice to all
Holders of Securities and shares of Common Stock issued upon
conversion of the Notes stating that: (1) the Company has
received a request from the Holders of the requisite amount of
Securities and/or Common Stock issued or issuable on
conversion of the Notes to effect an Underwritten Offering on
behalf of such Holders; (2) under the terms of this Agreement,
all Holders of Securities and shares of Common Stock issued or
issuable upon conversion of the Notes which are Transfer
Restricted Securities may include their Securities and shares
of Common Stock in such Underwritten Offering, subject to the
terms and conditions set forth in this Agreement and subject
to the right of the Managing Underwriters to reduce, in light
of market conditions and other similar factors, the aggregate
principal amount of Securities and number of shares of Common
Stock included in such Underwritten Offering; (3) all Holders
electing to include Securities or shares of Common Stock in
such Underwritten Offering must notify the Issuers in writing
of such election (the "Election"), and setting forth an
address and facsimile number to which such Elections may be
sent and the deadline (which shall be 12:00 midnight on the
10th calendar day after such notice is mailed to Holders or,
if not a Business Day, the next succeeding Business Day (the
"Deadline")) by which such Elections must be received by the
Issuers; and (4) setting forth such other instructions as
shall be necessary to enable Holders to include their
securities and shares of Common
-16-
Stock in such Underwritten Offering. No Holder shall be
entitled to participate in an Underwritten Offering unless
such Holder notifies the Issuers of such Election by the
Deadline. Notwithstanding anything to the contrary contained
herein, if the Managing Underwriters for an Underwritten
Offering to be effected pursuant to this Section 3(u) advise
the Holders of the Securities and shares of the Common Stock
to be included in such Underwritten Offering that, because of
the aggregate principal amount of Securities and/or number of
shares of Common Stock that such Holders have requested be
included in the Underwritten Offering, the success of the
offering would likely be materially adversely affected by the
inclusion of all of the Securities and shares of Common Stock
requested to be included, then the principal amount of
Securities and the number of shares of Common Stock to be
offered for the accounts of Holders shall be reduced pro rata,
according to the aggregate principal amount of Securities and
number of shares of Common Stock, respectively, requested for
inclusion by each such Holder, to the extent necessary to
reduce the size of the offering to the size recommended by the
Managing Underwriter. Notwithstanding anything to the contrary
contained herein, neither the Issuers nor any Person, other
than a Holder of Securities or shares of Common Stock issued
or issuable upon conversion of the Notes and only with respect
to its Transfer Restricted Securities, shall be entitled to
include any securities in the Underwritten Offering.
4. Registration Expenses. The Issuers shall bear all expenses
incurred in connection with the performance of its obligations under Sections 2
and 3 hereof and shall reimburse the Holders for the reasonable fees and
disbursements of one firm or counsel designated by the Majority Holders to act
as counsel for the Holders in connection therewith. Notwithstanding the
provisions of this Section 4, each Holder shall bear the expense of any broker's
commission, agency fee or Underwriter's discount or commission.
5. Indemnification and Contribution.
(a) Each of the Company and the Guarantor, jointly and
severally, agrees to indemnify and hold harmless each Holder of
Transfer Restricted Securities covered by any Shelf Registration
Statement (including each of the Initial Purchasers), the directors,
officers, employees and agents of each such Holder and each person who
controls any such Holder within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state law
or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Shelf Registration
Statement as originally filed or in any amendment thereof, or in any
preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by any of them in
connection with defending any such loss, claim,
-17-
damage, liability or action; provided, however, that neither the
Company nor the Guarantor will be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is
based upon (A) any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company or the
Guarantor by or on behalf of any such Holder or any Initial Purchaser
specifically for inclusion therein, (B) use of a Shelf Registration
Statement or the related Prospectus during a period when use of such
Prospectus has been suspended pursuant to Section 2(d) or Section 3(s)
hereof; provided, further, in each case, that Holders received prior
notice of such suspension, or (C) if the Holder fails to deliver a
Prospectus, as then amended or supplemented, provided that the Issuers
shall have delivered to such Holder such Prospectus, as then amended or
supplemented. This indemnity agreement will be in addition to any
liability which the Company or the Guarantor may otherwise have.
(b) Each Holder of Transfer Restricted Securities covered by a
Shelf Registration Statement (including the Initial Purchasers)
severally and not jointly agrees to indemnify and hold harmless
(i) the Company and the Guarantor,
(ii) each of their directors,
(iii) each of their officers, and
(iv) each person who controls the Company or the
Guarantor within the meaning of either the Act or the Exchange
Act to the same extent as the foregoing indemnity from the
Issuers to each such Holder,
but only with reference to written information relating to such Holder
furnished to the Issuers by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing indemnity.
This indemnity agreement shall be in addition to any liability which
any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 5, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it was not
otherwise notified of such action and such failure results in the
forfeiture by the indemnifying party of any rights or defenses. The
indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained
by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory
to the indemnified party. Notwithstanding the
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indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if
(i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such
counsel with a conflict of interest;
(ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party
and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are
different from or additional to those available to the
indemnifying party and that representation of the indemnified
party by counsel chosen by the indemnifying party would be
inappropriate due to actual or potential differing interests
among the parties represented by such counsel;
(iii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after
notice of the institution of such action; or
(iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of
the indemnifying party.
Neither an indemnifying party nor an indemnified party will, without
the prior written consent of the other parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
such other parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of such other parties from all liability arising
out of such claim, action, suit or proceeding. An indemnifying party
shall not be liable for any losses, claims, damages or liabilities by
reason of any settlement of any action or proceeding effected without
such indemnifying party's prior written consent, which consent will not
be unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 5 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, then each applicable
indemnifying party shall have an obligation to contribute to the
aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses"), as incurred, to which such
indemnified party may be subject in such proportion as is appropriate
to reflect the relative benefits received by such indemnifying party,
on the one hand, and such indemnified party, on the other hand, from
the Initial Placement and any sales of Transfer Restricted Securities
under the Shelf Registration Statement; provided, however, that in no
case shall the Initial Purchasers be responsible, in the aggregate, for
any amount in excess of the purchase discount or commission applicable
to the Securities, as set forth in the Purchase Agreement. If the
allocation
-19-
provided by the immediately preceding sentence is unavailable for any
reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of such indemnifying
party, on the one hand, and such indemnified party, on the other hand,
in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits
received by the Issuers shall be deemed to be equal to the sum of (x)
the total net proceeds from the Initial Placement (before deducting
expenses) and (y) the total amount of Liquidated Damages which the
Issuers were not required to pay as a result of registering the
Transfer Restricted Securities covered by the Shelf Registration
Statement which resulted in such Losses. Benefits received by the
Initial Purchasers shall be deemed to be equal to the total purchase
discounts and commissions received in connection with the Initial
Placement, and benefits received by any other Holders shall be deemed
to be equal to the value of receiving Transfer Restricted Securities
registered under the Act. Benefits received by any Underwriter shall be
deemed to be equal to the total underwriting discounts and commissions,
as set forth on the cover page of the Prospectus forming a part of the
Shelf Registration Statement which resulted in such Losses. Relative
fault shall be determined by reference to whether any untrue statement
or omission or alleged untrue statement or omission relates to
information provided by the indemnifying party, on the one hand, or by
the indemnified party, on the other hand, the intent of the parties and
their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The parties agree
that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not
take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 5(d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 5, each person who controls a Holder within the meaning of
either the Act or the Exchange Act and each director, officer, employee
and agent of such Holder shall have the same rights to contribution as
such Holder, and each person who controls the Company or the Guarantor
within the meaning of either the Act or the Exchange Act, each officer
of the Company who signed the Shelf Registration Statement and each
director of the Company or the Guarantor shall have the same rights to
contribution as the Company or the Guarantor, and each person who
controls an Underwriter within the meaning of either the Act or the
Exchange Act and each officer and director of each Underwriter shall
have the same rights to contribution as such Underwriter, subject in
each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 5 will remain in full force
and effect, regardless of any investigation made by or on behalf of any
Holder, any Underwriter, the Company, the Guarantor or any of the
officers, directors or controlling persons referred to in Section 5
hereof, and will survive the sale by a Holder of Transfer Restricted
Securities covered by a Shelf Registration Statement.
-20-
6. Miscellaneous.
(a) No Inconsistent Agreements. Neither the Company nor the
Guarantor has, as of the date hereof, entered into nor shall it, on or
after the date hereof, enter into, any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders
herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the
Issuers have obtained the written consent of the Majority Holders;
provided that with respect to any matter that directly or indirectly
affects the rights of the Initial Purchasers hereunder, the Issuers
shall obtain the written consent of each of the Initial Purchasers
against which such amendment, qualification, supplement, waiver or
consent is to be effective. Notwithstanding the foregoing (except the
foregoing proviso), a waiver or consent to departure from the
provisions hereof with respect to a matter that relates exclusively to
the rights of Holders whose Transfer Restricted Securities are being
sold pursuant to a Shelf Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given
by the Majority Holders, determined on the basis of the Transfer
Restricted Securities being sold rather than registered under such
Shelf Registration Statement.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telecopier, or air courier guaranteeing overnight
delivery:
(i) if to the Representatives, initially at its
address set forth in the Purchase Agreement;
(ii) if to any other Holder, at the most current
address of such Holder maintained by the Registrar under the
Indenture or the registrar of the Common Stock (provided that
while the Securities or the Common Stock are in book-entry
form, notice to the Trustee shall serve as notice to the
Holders), or, in the case of the Notice Holder, the address
set for in its Notice and Questionnaire; and
(iii) if to the Company or the Guarantor, initially
at the Company's address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received, if delivered by hand or air courier, and
when sent, if sent by first-class mail or telecopier.
The Initial Purchasers or the Issuers by notice to the other
may designate additional or different addresses for subsequent notices
or communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of
the parties, including, without the need for an express assignment or
any consent by the Company or the Guarantor thereto,
-21-
subsequent Holders. The Issuers hereby agree to extend the benefits of
this Agreement to any Holder and Underwriter and any such Holder and
Underwriter may specifically enforce the provisions of this Agreement
as if an original party hereto. In the event that any other person
shall succeed to the Company or the Guarantor under the Indenture, then
such successor shall enter into an agreement, in form and substance
reasonably satisfactory to the Representatives, whereby such successor
shall assume all of the Company's or Guarantor's obligations, as the
case may be, under this Agreement.
(e) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
(h) Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired or affected thereby, it being intended
that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(i) Securities Held by the Issuers, etc. Whenever the consent
or approval of Holders of a specified percentage of principal amount of
Securities or the Common Stock issuable upon conversion of the Notes is
required hereunder, Securities or the Common Stock issued upon
conversion of the Notes held by the Company, the Guarantor or their
Affiliates (other than subsequent Holders of Securities or the Common
Stock issued upon conversion of the Notes if such subsequent Holders
are deemed to be Affiliates solely by reason of their holdings of such
Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(j) Termination. This Agreement and the obligations of the
parties hereunder shall terminate upon the end of the Shelf
Registration Period, except for any liabilities or obligations under
Section 2(e), 4 or 5 to the extent arising prior to the end of the
Shelf Registration Period.
[signature page follows]
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Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Guarantor and you.
Very truly yours,
GATX CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
GATX FINANCIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
X.X. XXXXXX SECURITIES INC.
CITIGROUP GLOBAL MARKETS INC.
DEUTSCHE BANK SECURITIES INC.
By: X.X. Xxxxxx Securities Inc.
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Managing Director
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FORM OF SELLING SECURITY HOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial holder of 5% Senior Convertible Notes due
2023 (the "Notes") of GATX Corporation ("GATX" or the "Company") or shares of
common stock of the Company issuable upon conversion of the Notes (together with
the Notes, the "Registrable Securities") of the Company understands that the
Company has filed or intends to file with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Registrable Securities in
accordance with the terms of the Registration Rights Agreement (the
"Registration Rights Agreement") dated as of August 15, 2003 among the Company,
GATX Financial Corporation and the initial purchasers named therein. The
Registration Rights Agreement is available from the Company upon request at the
address set forth below. All capitalized terms not otherwise defined herein
shall have the meaning ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to the
benefits of the Registration Rights Agreement. In order to sell or otherwise
dispose of any Registrable Securities pursuant to the Shelf Registration
Statement, a beneficial owner of Registrable Securities generally will be
required to be named as a selling securityholder in the related prospectus,
deliver a prospectus to purchasers of Registrable Securities and be bound by
those provisions of the Registration Rights Agreement applicable to such
beneficial owner (including certain indemnification provisions as described
below). Beneficial owners that do not complete this Notice and Questionnaire and
deliver it to the Company as provided below will not be named as selling
securityholders in the prospectus and therefore will not be permitted to sell
any Registrable Securities pursuant to the Shelf Registration Statement.
Beneficial owners are encouraged to complete and deliver this Notice and
Questionnaire prior to the effectiveness of the Shelf Registration Statement so
that such beneficial owners may be named as selling securityholders in the
related prospectus at the time of effectiveness. Upon receipt of a completed
Notice and Questionnaire from a beneficial owner following the effectiveness of
the Shelf Registration Statement, the Company will, as promptly as practicable
but in any event within ten business days of such receipt, file such supplements
to the related prospectus as are necessary to permit such holder to deliver such
prospectus to purchasers of Registrable Securities. If we are required to file
amendments to the Shelf Registration Statement for this purpose, we will file
such amendments no less frequently than once every 30 days.
Certain legal consequences may arise from being named as selling
securityholders in the Shelf Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby gives notice to the Company of its intention to
sell or otherwise dispose of Registrable Securities beneficially owned by it and
listed below in Item 3 (unless otherwise specified under Item 3) pursuant to the
Shelf Registration Statement. The undersigned, by signing and returning
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this Notice and Questionnaire, understands that it will be bound by the terms
and conditions of this Notice and Questionnaire and the Registration Rights
Agreement.
The undersigned hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
1. (a) Full Legal Name of Selling Securityholder:
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(b) Full legal name of Registered Holder (if not the same as (a) above)
through which Registrable Securities listed in (3) below are held:
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(c) Full legal name of broker-dealer or other third party through which
Registrable Securities listed in (3) below are held:
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(d) Full legal name of DTC Participant (if applicable and if not the same
as (b) or (c) above) through which Registrable Securities listed in (3)
below are held:
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2. Address for Notices to Selling Securityholder:
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Telephone:
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Fax:
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Contact Person
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3. Beneficial Ownership of Registrable Securities:
(a) Type and Principal Amount of Registrable Securities beneficially
owned:
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(b) CUSIP No(s). of such Registrable Securities beneficially owned:
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Unless otherwise indicated in the space provided below, all Notes and all
shares of common stock listed in response to Item (3)(a) above, and all
shares of common stock issuable upon conversion of the Notes listed in
response to Item (3)(a) above, will be
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included in the Shelf Registration Statement. If the undersigned does not
wish all such Notes or shares of common stock to be so included, please
indicate below the principal amount or the number of shares to be
included:
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4. Beneficial Ownership of Company securities owned by the Selling
Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any securities of the Company other
than the Registrable Securities listed above in Item (3).
(a) Type and Amount of Other Securities beneficially owned by the Selling
Securityholder:
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(b) CUSIP No(s). of such Other Securities beneficially owned:
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5. Relationship with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, directors or principal equity holders (5% or more) has held
any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three
years.
State any exceptions here:
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6. Plan of Distribution:
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Registrable Securities listed above
in Item (3) pursuant to the Shelf Registration Statement only as follows
(if at all): Such Registrable Securities may be sold from time to time
directly by the undersigned or alternatively through underwriters or
broker-dealers or agents. If the Registrable Securities are sold through
underwriters or broker-dealers or agents, the Selling Securityholder will
be responsible for underwriting discounts or commissions or agent's
commissions. Such Registrable Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time of
sale, at varying prices determined at the time of sale, or at
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negotiated prices. Such sales may be effected in transactions (which
may involve crosses or block transactions) (i) on any national
securities exchange or quotation service on which the Registrable
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the undersigned may enter into
hedging transactions with broker-dealers, which may in turn engage in
short sales of the Registrable Securities, short and deliver
Registrable Securities to close out such short positions, or loan or
pledge Registrable Securities to broker-dealers that in turn may sell
such securities. The Selling Securityholder may pledge or grant a
security interest in some or all of the Registrable Securities owned by
it and, if it defaults in the performance of its secured obligations,
the pledgees or secured parties may offer and sell the Registrable
Securities from time to time pursuant to the prospectus. The Selling
Securityholder also may transfer and donate shares in other
circumstances in which case the transferees, donees, pledgees or other
successors in interest will be the selling securityholder for purposes
of the prospectus.
State any exceptions here:
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Note: In no event will such method(s) of distribution take the form of
an underwritten offering of the Registrable Securities without the
prior agreement of the Company.
The undersigned acknowledges that it understands its obligation to
comply with the provisions of the Securities Exchange Act of 1934, as amended,
and the rules thereunder relating to stock manipulation, particularly Regulation
M thereunder (or any successor rules or regulations) and the provisions of the
Securities Act of 1933, as amended, relating to prospectus delivery, in
connection with any offering of Registrable Securities pursuant to the Shelf
Registration Statement. The undersigned agrees that neither it nor any person
acting on its behalf will engage in any transaction in violation of such
provisions.
The Selling Securityholder hereby acknowledges its obligations under
the Registration Rights Agreement to indemnify and hold harmless certain persons
set forth therein.
Pursuant to the Registration Rights Agreement, the Company has agreed
under certain circumstances to indemnify the Selling Securityholders against
liabilities.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing at the
address set forth below.
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In the event any Selling Securityholder transfers all or any portion of
the Registrable Securities listed in Item (3) above after the date on which such
information is provided to GATX, the Selling Securityholder will notify the
transferee(s) at the time of transfer of its rights and obligations under this
Notice and Questionnaire and the Registration Rights Agreement.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and the
related prospectus. The undersigned understands that such information will be
relied upon by the Company without independent investigation or inquiry in
connection with the preparation or amendment of the Shelf Registration Statement
and the related prospectus.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its authorized agent.
Beneficial Owner
By:
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Name:
Title:
Dated:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO
GATX CORPORATION
000 XXXX XXXXXXX XXXXXX
XXXXXXX, XXXXXXXX 00000
ATTENTION: TREASURER
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