EXHIBIT 7.3
EXECUTION COPY
NOVA CHEMICALS CORPORATION
6 1/2 % Senior Notes due 2012
REGISTRATION RIGHTS AGREEMENT
New York, New York
January 13, 2004
Citigroup Global Markets Inc.
Banc One Capital Markets, Inc.
CIBC World Markets Corp.
RBC Dominion Securities Corporation
Scotia Capital (USA) Inc.
TD Securities (USA) Inc.
As Representative of the Initial Purchasers
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
NOVA Chemicals Corporation, a corporation organized under the
laws of Alberta, Canada (the "COMPANY"), proposes to issue and sell its 6 1/2 %
Senior Notes due 2012 (the "NOTES") to certain purchasers (the "INITIAL
PURCHASERS"), upon the terms set forth in a Purchase Agreement, dated as of
January 8, 2004, between the Company and the Initial Purchasers (the "PURCHASE
AGREEMENT"), relating to the initial placement of the Notes (the "INITIAL
PLACEMENT"). To induce the Initial Purchasers to enter into the Purchase
Agreement and to satisfy a condition of your obligations thereunder, the Company
agrees with you for your benefit and the benefit of the holders from time to
time of the Notes (including the Initial Purchasers) (each a "HOLDER" and,
together, the "HOLDERS"), as follows:
1. DEFINITIONS. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"ACT" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"ADDITIONAL INTEREST" shall have the meaning set forth in
Section 4.
1
"AFFILIATE" of any specified Person shall mean any other Person
that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified Person. For purposes of this
definition, control of a Person shall mean the power, direct or
indirect, to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise; and the terms
"controlling" and "controlled" shall have meanings correlative to the
foregoing.
"BROKER-DEALER" shall mean any broker or dealer registered as
such under the Exchange Act.
"BUSINESS DAY" shall mean any day other than a Saturday, a Sunday
or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"COMMISSION" shall mean the Securities and Exchange Commission.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"EXCHANGE NOTES" shall mean debt securities of the Company
identical in all material respects to the Notes (except that the cash
interest and interest rate step-up provisions and the transfer
restrictions shall be modified or eliminated, as appropriate) and to be
issued under the Indenture
"EXCHANGE OFFER REGISTRATION PERIOD" shall mean the one-year
period following the consummation of the Registered Exchange Offer,
exclusive of any period during which any stop order shall be in effect
suspending the effectiveness of the Exchange Offer Registration
Statement.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean a registration
statement of the Company on an appropriate form under the Act with
respect to the Registered Exchange Offer, all amendments and supplements
to such registration statement, including post-effective amendments
thereto, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"EXCHANGING DEALER" shall mean any Holder (which may include any
Initial Purchaser) that is a Broker-Dealer and elects to exchange for
Exchange Notes any Notes that it acquired for its own account as a
result of market-making activities or other trading activities (but not
directly from the Company or any Affiliate of the Company) for Exchange
Notes.
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"FINAL MEMORANDUM" shall have the meaning set forth in the
Purchase Agreement.
"HOLDER" shall have the meaning set forth in the preamble hereto.
"INDENTURE" shall mean the Indenture relating to the Notes, dated
as of January 13, 2004, between the Company and U.S. Bank National
Association, as trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"INITIAL PLACEMENT" shall have the meaning set forth in the
preamble hereto.
"INITIAL PURCHASERS" shall have the meaning set forth in the
preamble hereto.
"LOSSES" shall have the meaning set forth in Section 7(d) hereof.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of Notes to be registered under a
Registration Statement (or, after the consummation of any Registered
Exchange Offer in accordance with Section 2 hereof, of Exchange Notes).
"MANAGING UNDERWRITERS" shall mean the investment banker or
investment bankers and manager or managers that shall administer an
underwritten offering..
"NOTES" shall have the meaning set forth in the preamble hereto.
"PROSPECTUS" shall mean the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part
of an effective registration statement in reliance upon Rule 430A under
the Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Notes or the
Exchange Notes covered by such Registration Statement, and all
amendments and supplements thereto and all material incorporated by
reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the
preamble hereto.
"REGISTERED EXCHANGE OFFER" shall mean the proposed offer of the
Company to issue and deliver to the Holders of the Notes that are not
prohibited by any law or policy of the Commission from participating in
such offer, in exchange for the Notes, a like aggregate principal amount
of the Exchange Notes.
"REGISTRATION STATEMENT" shall mean any Exchange Offer
Registration Statement or Shelf Registration Statement that covers any
of the Notes or the
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Exchange Notes pursuant to the provisions of this Agreement, any
amendments and supplements to such registration statement, including
post-effective amendments (in each case including the Prospectus
contained therein), all exhibits thereto and all material incorporated
by reference therein.
"SHELF REGISTRATION" shall mean a registration effected pursuant
to Section 3 hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in Section
3(b)(ii) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 3 hereof
which covers some or all of the Notes or Exchange Notes, as applicable,
on an appropriate form under Rule 415 under the Act, or any similar rule
that may be adopted by the Commission, amendments and supplements to
such registration statement, including post-effective amendments, in
each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"TRUSTEE" shall mean the trustee from time to time with respect
to the Notes and the Exchange Notes under the Indenture.
"UNDERWRITER" shall mean any underwriter of Notes in connection
with an offering thereof under a Shelf Registration Statement.
2. REGISTERED EXCHANGE OFFER. (a) The Company shall prepare and,
not later than 90 days following the date of the original issuance of the Notes
(or if such 90th day is not a Business Day, the next succeeding Business Day),
shall file with the Commission the Exchange Offer Registration Statement (which
may be on Form F-10, if available) with respect to the Registered Exchange
Offer. The Company shall use its commercially reasonable efforts to cause the
Exchange Offer Registration Statement to become effective under the Act within
180 days of the date of the original issuance of the Notes (or if such 180th day
is not a Business Day, the next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable each Holder
electing to exchange Notes for Exchange Notes (assuming that such Holder is not
an Affiliate of the Company, acquires the Exchange Notes in the ordinary course
of such Holder's business, has no arrangements with any Person to participate in
the distribution of the Exchange Notes and is not prohibited by any law or
policy of the Commission from participating in the Registered Exchange Offer) to
trade such Exchange Notes from and after their receipt without any limitations
or restrictions
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under the Act and without material restrictions under the securities laws of a
substantial proportion of the several states of the United States.
(c) In connection with the Registered Exchange Offer, the
Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than
20 Business Days and not more than 30 Business Days after the date
notice thereof is mailed to the Holders (or, in each case, longer if
required by applicable law);
(iii) use its commercially reasonable efforts to keep the
Exchange Offer Registration Statement continuously effective under the
Act, supplemented and amended as required under the Act, to ensure that
it is available for sales of Exchange Notes by Exchanging Dealers during
the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee, the Exchange Notes Trustee or an
Affiliate of either of them;
(v) permit Holders to withdraw tendered Notes at any time prior
to the close of business, New York time, on the last Business Day on
which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer Registration
Statement, provide a supplemental letter to the Commission (A) stating
that the Company is conducting the Registered Exchange Offer in reliance
on the position of the Commission in EXXON CAPITAL HOLDINGS CORPORATION
(pub. avail. May 13, 1988) and XXXXXX XXXXXXX AND CO., INC. (pub. avail.
June 5, 1991); and (B) including a representation that the Company has
not entered into any arrangement or understanding with any Person to
distribute the Exchange Notes to be received in the Registered Exchange
Offer and that, to the best of the Company's information and belief,
each Holder participating in the Registered Exchange Offer is acquiring
the Exchange Notes in the ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the Exchange Notes; and
(vii) comply in all material respects with all applicable laws
relating to the Registered Exchange Offer.
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(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company shall:
(i) accept for exchange all Notes tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance with
Section 5(s) all Notes so accepted for exchange; and
(iii) cause the Trustee or the Exchange Notes Trustee, as the
case may be, promptly to authenticate and deliver to each Holder of
Notes a principal amount of Exchange Notes equal to the principal amount
of the Notes of such Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Registered Exchange Offer to
participate in a distribution of the Exchange Notes, if the resales are of
Exchange Notes obtained by such Holder in exchange for Notes acquired by such
Holder directly from the Company or one of its Affiliates, (x) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission in XXXXXX XXXXXXX AND CO., INC. (pub. avail. June 5,
1991) and EXXON CAPITAL HOLDINGS CORPORATION (pub. avail. May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated July 2, 1993
and similar no-action letters; and (y) must comply with the registration and
prospectus delivery requirements of the Act in connection with any secondary
resale transaction and such transaction must be covered by an effective
registration statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K under the Act.
Accordingly, each Holder participating in the Registered Exchange Offer shall be
required in writing to represent to the Company that, at the time of the
consummation of the Registered Exchange Offer:
(i) any Exchange Notes received by such Holder will be acquired
in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding with
any Person to participate in the distribution of the Notes or the
Exchange Notes within the meaning of the Act; and
(iii) such Holder is not an Affiliate of the Company (or if it
is, that it will comply with the registration and prospectus delivery
requirements of the Act to the extent applicable).
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(f) If any Initial Purchaser determines that it is not eligible
to participate in the Registered Exchange Offer with respect to the exchange of
Notes constituting any portion of an unsold allotment, at the request of such
Initial Purchaser, the Company shall issue and deliver to such Initial Purchaser
or the Person purchasing Exchange Notes registered under a Shelf Registration
Statement as contemplated by Section 3 hereof from such Initial Purchaser, in
exchange for such Notes, a like principal amount of Exchange Notes. The Company
shall use its commercially reasonable efforts to cause the CUSIP Service Bureau
to issue the same CUSIP number for such Exchange Notes as for Exchange Notes
issued pursuant to the Registered Exchange Offer.
3. SHELF REGISTRATION. (a) If (i) due to any change in law or
applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted to effect
the Registered Exchange Offer as contemplated by Section 2 hereof; or (ii) for
any other reason the Exchange Offer Registration Statement is not declared
effective by the Commission under the Act within 180 days of the date of the
original issuance of the Notes or the Registered Exchange Offer is not
consummated within 30 Business Days of the date of the effectiveness of the
Exchange Offer Registration Statement; (iii) any Initial Purchaser so requests
with respect to Notes that are not eligible to be exchanged for Exchange Notes
in the Registered Exchange Offer and that are held by it following consummation
of the Registered Exchange Offer; (iv) any Holder (other than an Initial
Purchaser) is not eligible to participate in the Registered Exchange Offer or
does not receive freely tradable Exchange Notes in the Registered Exchange
Offer, other than by reason of such Holder being an Affiliate of the Company (it
being understood that the requirement that a participating Broker-Dealer deliver
the prospectus contained in the Exchange Offer Registration Statement in
connection with sales of Exchange Notes shall not result in such Exchange Notes
being not "freely tradable"); or (v) in the case of any Initial Purchaser that
participates in the Registered Exchange Offer or acquires Exchange Notes
pursuant to Section 2(f) hereof, such Initial Purchaser does not receive freely
tradeable Exchange Notes in exchange for Notes constituting any portion of an
unsold allotment, other than by reason of such Holder being an Affiliate of the
Company (it being understood that (x) the requirement that an Initial Purchaser
deliver a Prospectus containing the information required by Item 507 or 508 of
Regulation S-K under the Act in connection with sales of Exchange Notes acquired
in exchange for such Notes shall not result in such Exchange Notes being not
"freely tradeable"; and (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of Exchange Notes acquired in the Registered
Exchange Offer in exchange for Notes acquired as a result of market-making
activities or other trading activities shall not result in such Exchange Notes
being not "freely tradeable"), the Company shall effect a Shelf Registration
Statement in accordance with subsection (b) below.
(b) (i) The Company shall as promptly as practicable (but in no
event more than 90 days after so required or requested pursuant to this Section
3), file with the Commission and thereafter shall use its commercially
reasonable efforts to cause to be
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declared effective under the Act a Shelf Registration Statement relating to the
offer and sale of the Notes or the Exchange Notes, as applicable, by the Holders
thereof from time to time in accordance with the methods of distribution elected
by such Holders and set forth in such Shelf Registration Statement; PROVIDED,
HOWEVER, that no Holder (other than an Initial Purchaser) shall be entitled to
have the Notes held by it covered by such Shelf Registration Statement unless
such Holder agrees in writing to be bound by all of the provisions of this
Agreement applicable to such Holder; and PROVIDED FURTHER, that with respect to
Exchange Notes received by an Initial Purchaser in exchange for Notes
constituting any portion of an unsold allotment, the Company may, if permitted
by current interpretations by the Commission's staff, file a post-effective
amendment to the Exchange Offer Registration Statement containing the
information required by Item 507 or 508 of Regulation S-K, as applicable, in
satisfaction of their obligations under this subsection with respect thereto,
and any such Exchange Offer Registration Statement, as so amended, shall be
referred to herein as, and governed by the provisions herein applicable to, a
Shelf Registration Statement.
(ii) The Company shall use its commercially reasonable efforts
to keep the Shelf Registration Statement continuously effective,
supplemented and amended as required by the Act, in order to permit the
Prospectus forming part thereof to be usable by Holders for a period of
two years from the date the Shelf Registration Statement is declared
effective by the Commission or such shorter period that will terminate
when all the Notes or Exchange Notes, as applicable, covered by the
Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement (in any such case, such period being called the
"SHELF REGISTRATION PERIOD"). The Company shall be deemed not to have
used its commercially reasonable efforts to keep the Shelf Registration
Statement effective during the requisite period if they voluntarily take
any action that would result in Holders of Notes covered thereby not
being able to offer and sell such Notes during that period, unless (A)
such action is required by applicable law; or (B) such action is taken
by the Company in good faith and for valid business reasons (not
including avoidance of the Company's obligations hereunder), including
the acquisition or divestiture of assets (to the extent permitted by the
terms of the Indenture), so long as the Company promptly thereafter
complies with the requirements of Section 5(k) hereof, if applicable.
(iii) The Company shall cause the Shelf Registration Statement
and the related Prospectus and any amendment or supplement thereto, as
of the effective date of the Shelf Registration Statement or such
amendment or supplement, (A) to comply in all material respects with the
applicable requirements of the Act; and (B) not to contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
4. ADDITIONAL INTEREST. If (a) on or prior to the 90th day
following the original issue date of the Notes, the Exchange Offer Registration
Statement has not been filed
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with the Commission or on or prior to the 90th day after the obligation to file
the Shelf Registration Statement has arisen, the Shelf Registration Statement
has not been filed with the Commission, (b) on or prior to the 180th day
following the original issue date of the Notes, the Exchange Offer Registration
Statement has not been declared effective by the Commission, (c) on or prior to
the 30th Business Day following the date the Exchange Offer Registration
Statement is declared effective, the Registered Exchange Offer has not been
consummated, or (d) after either the Exchange Offer Registration Statement or
the Shelf Registration Statement has been declared effective, such Registration
Statement thereafter ceases to be effective or usable in connection with resales
of Notes or Exchange Notes in accordance with and during the periods specified
in this Agreement without being succeeded immediately by a successor
Registration Statement or a post-effective amendment to such Registration
Statement that cures such failure and that is itself immediately declared
effective (each such event referred to in clauses (a) through (d), a
("REGISTRATION DEFAULT"), interest ("ADDITIONAL INTEREST") will accrue on the
principal amount of the Notes and the Exchange Notes (in addition to the stated
interest on the Notes and Exchange Notes) from and including the date on which
any such Registration Default shall occur to but excluding the date on which all
Registration Defaults have been cured. Additional Interest will accrue at a rate
of 0.25% PER ANNUM during the 90-day period immediately following the occurrence
of such Registration Default and shall increase by 0.25% PER ANNUM at the end of
each subsequent 90-day period, but in no event shall such rate exceed 1.00% PER
ANNUM.
All obligations of the Company set forth in the preceding
paragraph that are outstanding with respect to any Notes at the time such Notes
are exchanged for a New Note shall survive until such time as all such
obligations with respect to such Notes have been satisfied in full.
5. ADDITIONAL REGISTRATION PROCEDURES. In connection with any
Shelf Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company shall:
(i) furnish to you, not less than five (5) Business Days prior
to the filing thereof with the Commission, a copy of any Exchange Offer
Registration Statement and any Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein (including, upon request, all documents
incorporated by reference therein after the initial filing) and shall
use its commercially reasonable efforts to reflect in each such
document, when so filed with the Commission, such comments as you
reasonably propose within five (5) Business Days after the receipt
thereof;
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(ii) include the information set forth in ANNEX A hereto on the
facing page of the Exchange Offer Registration Statement, in ANNEX B
hereto in the forepart of the Exchange Offer Registration Statement in a
section setting forth details of the Exchange Offer, in ANNEX C hereto
in the underwriting or plan of distribution section of the Prospectus
contained in the Exchange Offer Registration Statement, and in Annex D
hereto in the letter of transmittal delivered pursuant to the Registered
Exchange Offer;
(iii) if requested by an Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in the Prospectus contained in the Exchange Offer
Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the
names of the Holders that propose to sell Notes pursuant to the Shelf
Registration Statement as selling security holders.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any amendment or supplement thereto
complies in all material respects with the Act and the rules and
regulations thereunder; and
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(c) The Company shall advise you, the Holders of Notes covered
by any Shelf Registration Statement and any Exchanging Dealer under any Exchange
Offer Registration Statement that has provided in writing to the Company a
telephone or facsimile number and address for notices, and, if requested by you
or any such Holder or Exchanging Dealer, shall confirm such advice in writing
(which notice pursuant to clauses (ii) through (v) hereof shall be accompanied
by an instruction to suspend the use of the Prospectus until the Company shall
have remedied the basis for such suspension):
(i) when the Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement
or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
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(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation of any
proceeding for such purpose; and
(v) of the happening of any event that requires any change in
the Registration Statement or the Prospectus so that, as of such date,
the statements therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading.
(d) The Company shall use its commercially reasonable efforts to
obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement or the qualification of the securities therein for sale
in any jurisdiction at the earliest possible time.
(e) The Company shall furnish to each Holder of Notes covered by
any Shelf Registration Statement, without charge, at least one copy of such
Shelf Registration Statement and any post-effective amendment thereto, including
all material incorporated therein by reference, and, if the Holder so requests
in writing, all exhibits thereto (including exhibits incorporated by reference
therein).
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Notes covered by any Shelf Registration Statement,
without charge, as many copies of the Prospectus (including each preliminary
Prospectus) included in such Shelf Registration Statement and any amendment or
supplement thereto as such Holder may reasonably request. The Company consents
to the use of the Prospectus or any amendment or supplement thereto by each of
the selling Holders of securities in connection with the offering and sale of
the securities covered by the Prospectus, or any amendment or supplement
thereto, included in the Shelf Registration Statement.
(g) The Company shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including all material
incorporated by reference therein, and, if the Exchanging Dealer so requests in
writing, all exhibits thereto (including exhibits incorporated by reference
therein).
(h) The Company shall promptly deliver to each Initial
Purchaser, each Exchanging Dealer and each other Person required to deliver a
Prospectus during the Exchange Offer Registration Period, without charge, as
many copies of the Prospectus
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included in such Exchange Offer Registration Statement and any amendment or
supplement thereto as any such Person may reasonably request. The Company
consents to the use of the Prospectus or any amendment or supplement thereto
by any Initial Purchaser, any Exchanging Dealer and any such other Person
that may be required to deliver a Prospectus following the Registered
Exchange Offer in connection with the offering and sale of the Exchange Notes
covered by the Prospectus, or any amendment or supplement thereto, included
in the Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering
of Notes or Exchange Notes pursuant to any Registration Statement, the Company
shall arrange, if necessary, for the qualification of the Notes or the Exchange
Notes for sale under the laws of such jurisdictions as any Holder shall
reasonably request and will maintain such qualification in effect so long as
required; PROVIDED that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where they are not then so qualified or to take
any action that would subject them to service of process in suits, other than
suits arising out of the Initial Placement, the Registered Exchange Offer or any
offering pursuant to a Shelf Registration Statement, in any such jurisdiction
where they are not then so subject.
(j) The Company shall cooperate with the Holders of Notes to
facilitate the timely preparation and delivery of certificates representing
Exchange Notes or Notes to be issued or sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as Holders may request.
(k) (i) Upon the occurrence of any event contemplated by
subsections (c)(ii) through (v) above during the period of time in which the
Company is required to maintain an effective Registration Statement, the Company
shall promptly prepare a post-effective amendment to the applicable Registration
Statement or an amendment or supplement to the related Prospectus or file any
other required document so that, as thereafter delivered to initial purchasers
of the securities included therein, the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. In such circumstances, the period of effectiveness of
the Exchange Offer Registration Statement provided for in Section 2 and the
Shelf Registration Statement provided for in Section 3(b) shall each be extended
by the number of days from and including the date of the giving of a notice of
suspension pursuant to Section 5(c) to and including the date when the Initial
Purchasers, the Holders of the Notes and any known Exchanging Dealer shall have
received such amended or supplemented Prospectus pursuant to this Section.
(ii) Upon the occurrence or existence of any pending corporate
development or any other material event that, in the reasonable judgment of the
Company, makes it appropriate to suspend the availability of a Shelf
Registration Statement and the related Prospectus, the Company shall give
written notice (without notice of the nature or
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details of such events) to the Holders that the availability of the Shelf
Registration Statement is suspended and, upon actual receipt of any such written
notice, each Holder agrees not to sell any Registrable Securities pursuant to
the Shelf Registration Statement until such Holder's receipt of copies of the
supplemented or amended Prospectus provided for in Section 5(k)(i) hereof, or
until it is advised in writing by the Company that the Prospectus may be used,
and has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus. The Company
may give any such written notice only twice during any 365-day period and any
such suspensions shall not exceed 60 days for each suspension and there shall
not be more than two suspensions in effect during any 365-day period.
(l) Not later than the effective date of any Registration
Statement, the Company shall provide a CUSIP number for the Notes or the
Exchange Notes, as the case may be, registered under such Registration Statement
and provide the Trustee or the Exchange Notes Trustee, as the case may be, with
printed certificates for such Notes or Exchange Notes, in a form eligible for
deposit with The Depository Trust Company.
(m) The Company shall comply with all applicable rules and
regulations of the Commission and shall make generally available to their
security holders as soon as practicable after the effective date of the
applicable Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the Act.
(n) The Company shall cause the Indenture to be qualified under
the Trust Indenture Act in a timely manner.
(o) The Company may require each Holder of Notes or Exchange
Notes to be sold pursuant to any Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of such Notes
or Exchange Notes as the Company may from time to time reasonably require for
inclusion in such Registration Statement. The Company may exclude from such
Shelf Registration Statement the Notes or Exchange Notes of any Holder that
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
(p) In the case of any Shelf Registration Statement, the Company
shall enter into such agreements and take all other appropriate actions
(including if requested an underwriting agreement in customary form) in order to
expedite or facilitate the registration or the disposition of the Notes or
Exchange Notes, and in connection therewith, if an underwriting agreement is
entered into, cause the same to contain indemnification provisions and
procedures no less favorable than those set forth in Section 7 (or such other
provisions and procedures acceptable to the Majority Holders and the Managing
Underwriters, if any), with respect to all parties to be indemnified pursuant to
Section 7.
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(q) In the case of any Shelf Registration Statement, the Company
shall:
(i) Upon written request and reasonable notice, make reasonably
available for inspection by the Holders of Notes or Exchange Notes to be
registered thereunder, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney, accountant or
other agent retained by the Holders or any such underwriter all relevant
financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries; provided, however, that
any information that is designated in writing by the Company, 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 such disclosure is made in connection with a
court proceeding or required by law, or such information becomes
available to the public generally or through a third party without an
accompanying obligation of confidentiality;
(ii) Upon written request and reasonable notice, cause the
Company's officers, directors and employees to supply all relevant
information reasonably requested by the Holders or any underwriter,
attorney, accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence examinations;
provided, however, that any information that is designated in writing by
the Company, 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 such disclosure is
made in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Holders of
Notes or Exchange Notes registered thereunder and the underwriters, if
any, in form, substance and scope as are customarily made by issuers to
underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to the Managing Underwriters, if any),
addressed to each selling Holder and the underwriters, if any, covering
such matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters, if any;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent
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certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the
Registration Statement), addressed to each selling Holder of Notes or
Exchange Notes registered thereunder and the underwriters, if any, in
customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with primary underwritten
offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance with
Section 5(k) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall
be performed at (A) the effectiveness of such Registration Statement and each
post-effective amendment thereto; and (B) each closing under any underwriting or
similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration Statement,
the Company shall, if requested by an Initial Purchaser or any Exchanging
Dealer:
(i) make reasonably available for inspection by such Initial
Purchaser, and any attorney, accountant or other agent retained by such
Initial Purchaser, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by such Initial
Purchaser or any such attorney, accountant or agent in connection with
any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that any information that is
designated in writing by the Company, in good faith, as confidential at
the time of delivery of such information shall be kept confidential by
such Initial Purchaser or any such attorney, accountant or agent, unless
such disclosure is made in connection with a court proceeding or
required by law, or such information becomes available to the public
generally or through a third party without an accompanying obligation of
confidentiality;
(iii) make such representations and warranties to such Initial
Purchaser, in form, substance and scope as are customarily made by
issuers to underwriters in primary underwritten offerings and covering
matters including, but not limited to, those set forth in the Purchase
Agreement;
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(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to such Initial Purchaser and its counsel),
addressed to such Initial Purchaser, covering such matters as are
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such Initial
Purchaser or its counsel;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for
which financial statements and financial data are, or are required to
be, included in the Registration Statement), addressed to such Initial
Purchaser, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with primary
underwritten offerings, or if requested by such Initial Purchaser or its
counsel in lieu of a "cold comfort" letter, an agreed-upon procedures
letter under Statement on Auditing Standards No. 35, covering matters
requested by such Initial Purchaser or its counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by such Initial Purchaser or its counsel, including
those to evidence compliance with Section 5(k) and with conditions
customarily contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section shall be performed at the close of the Registered Exchange Offer and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(s) If a Registered Exchange Offer is to be consummated, upon
delivery of the Notes by Holders to the Company (or to such other Person as
directed by the Company) in exchange for the Exchange Notes, the Company shall
xxxx, or cause to be marked, on the Notes so exchanged that such Notes are being
canceled in exchange for the Exchange Notes. In no event shall the Notes be
marked as paid or otherwise satisfied.
(t) The Company will use its commercially reasonable efforts (i)
if the Notes have been rated prior to the initial sale of such Notes, to confirm
such ratings will apply to the Notes or the Exchange Notes, as the case may be,
covered by a Registration Statement; or (ii) if the Notes were not previously
rated, to cause the Notes covered by a Registration Statement to be rated with
at least one nationally recognized statistical rating agency, if so requested by
Majority Holders with respect to the related Registration Statement or by any
Managing Underwriters.
(u) In the event that any Broker-Dealer shall underwrite any
Notes or participate as a member of an underwriting syndicate or selling group
or "assist in the
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distribution" (within the meaning of the Rules of Fair Practice and the By-Laws
of the National Association of Securities Dealers, Inc.) thereof, whether as a
Holder of such Notes or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, the Company shall assist such
Broker-Dealer in complying with the requirements of such Rules and By-Laws,
including, without limitation, by:
(i) if such Rules or By-Laws shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to
exercise usual standards of due diligence with respect thereto and, if
any portion of the offering contemplated by such Registration Statement
is an underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Notes;
(ii) indemnifying any such qualified independent underwriter to
the extent of the indemnification of underwriters provided in Section 7
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 such Rules.
(iv) The Company shall use its commercially reasonable efforts
to take all other steps necessary to effect the registration of the
Notes or the Exchange Notes, as the case may be, covered by a
Registration Statement.
6. REGISTRATION EXPENSES. The Company shall bear all expenses
incurred in connection with the performance of its obligations under Sections 2,
3 and 5 hereof and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable fees and disbursements of counsel
designated by the Majority Holders to act as counsel for the Holders in
connection therewith, and, in the case of any Exchange Offer Registration
Statement, will reimburse the Initial Purchasers for the reasonable fees and
disbursements of counsel acting in connection therewith.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Holder of Notes or Exchange Notes, as the case
may be, covered by any Registration Statement (including each Initial Purchaser
and, with respect to any Prospectus delivery as contemplated in Section 5(h)
hereof, each Exchanging Dealer), the directors, officers, employees and agents
of each such Holder and each Person who controls any such Holder within the
meaning of either the Act or the Exchange Act against any and all losses,
claims, damages, or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed
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or in any amendment thereof, or in any preliminary Prospectus or the Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; PROVIDED,
HOWEVER, that the Company will not be liable in any case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any such Holder specifically for
inclusion therein; PROVIDED, FURTHER, that with respect to any preliminary
Prospectus of a Shelf Registration Statement, the indemnity contained herein
this Section 7(a) shall not inure to the benefit of a Holder from whom the
person asserting any such losses, claims, damages or liabilities purchased the
Securities concerned, to the extent that a Prospectus relating to such
Securities was required to be delivered by such Holder under the Act in
connection with such purchase, the Company delivered such Prospectus to such
Holder sufficiently in advance of the written confirmation of the sale of the
Securities and in sufficient quantity and any such losses, claims, damages or
liabilities result from the fact that a copy of such Prospectus was not
delivered to such person at or prior to the written confirmation of the sale of
the Securities to such person. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
The Company also agrees to indemnify or contribute as provided in
Section 7(d) to Losses of any underwriter of any Notes or Exchange Notes, as the
case may be, registered under a Shelf Registration Statement, their directors,
officers, employees or agents and each Person who controls such underwriter
(within the meaning of the Act or the Exchange Act) on substantially the same
basis as that of the indemnification of the Initial Purchasers and the selling
Holders provided in this Section 7(a) and shall, if requested by any Holder,
enter into an underwriting agreement reflecting such agreement, as provided in
Section 5(p) hereof.
(b) Each Holder of securities covered by a Registration
Statement (including each Initial Purchaser and, with respect to any Prospectus
delivery as contemplated in Section 5(h) hereof, each Exchanging Dealer)
severally agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who sign such Registration Statement and each
Person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
each such Holder, but only with reference to written information relating to
such Holder furnished to the Company by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any such Holder
may otherwise have.
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(c) Promptly after receipt by an indemnified party under this
Section 7 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, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses; and
(ii) will not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); PROVIDED, HOWEVER, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of 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 (upon advice of counsel) 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; (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. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have a joint and several obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"LOSSES") to which such indemnified party may be subject in such proportion as
is appropriate
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to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Registration Statement which resulted in such Losses;
PROVIDED, however, that in no case shall any Initial Purchaser or any subsequent
Holder of any Notes or Exchange Notes be responsible, in the aggregate, for any
amount in excess of the purchase discount or commission applicable to such
Notes, or in the case of Exchange Notes, applicable to the Notes that were
exchangeable into such Exchange Notes, nor shall any underwriter be responsible
for any amount in excess of the underwriting discount or commission applicable
to the securities purchased by such underwriter under the Registration Statement
which resulted in such Losses. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company 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 additional interest which the Company was not required to pay as
a result of registering the securities covered by the Registration Statement
which resulted in such Loses. Benefits received by the Initial Purchasers shall
be deemed to be equal to the total purchase discounts and commissions, and
benefits received by any other Holders shall be deemed to be equal to the
proceeds received from the sale of the Notes or Exchange Notes, as applicable.
Benefits received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Registration Statement which resulted in such
Losses. Relative fault shall be determined by reference to, among other things,
whether any 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 (even if the Holders were
treated as one entity for such purpose) or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each Person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each Person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
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(e) The provisions of this Section will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Company or any of the officers, directors or controlling Persons referred to
in this Section hereof, and will survive the sale by a Holder of securities
covered by a Registration Statement.
8. UNDERWRITTEN REGISTRATIONS. (a) If any of the Notes or
Exchange Notes, as the case may be, covered by any Shelf Registration Statement
are to be sold in an underwritten offering, the Managing Underwriters shall be
selected by the Majority Holders; PROVIDED, HOWEVER, that such Managing
Underwriters shall be reasonably satisfactory to the Company.
(b) No Person may participate in any underwritten offering
pursuant to any Shelf Registration Statement, unless such Person (i) agrees to
sell such Person's Notes or Exchange Notes, as the case may be, on the basis
reasonably provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements; and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
9. NO INCONSISTENT AGREEMENTS. The Company has not, as of the
date hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with the provisions
hereof.
10. AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Majority Holders; PROVIDED that, with respect to any matter that
directly or indirectly affects the rights of any Initial Purchaser hereunder,
the Company shall obtain the written consent of each such Initial Purchaser
against which such amendment, qualification, supplement, waiver or consent is to
be effective. Notwithstanding the foregoing, a waiver or consent to departure
from the provisions hereof with respect to a matter that relates exclusively to
the rights of Holders whose Notes or Exchange Notes, as the case may be, are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by the Holders
representing a majority of the aggregate principal amount of the Notes or the
Exchange Notes, as the case may be, being sold rather than registered under such
Registration Statement, voting together as a single class.
11. NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier or air courier guaranteeing overnight delivery:
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(a) if to a Holder, at the most current address given by such
holder to the Company in accordance with the provisions of this Section,
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture, with a copy
in like manner to Citigroup Global Markets Inc.;
(b) if to you, initially at the respective addresses set forth
in the Purchase Agreement; and
(c) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given when received.
The Initial Purchasers or the Company by notice to the other
parties may designate additional or different addresses for subsequent notices
or communications.
12. SUCCESSORS. This Agreement shall inure to the benefit of and
be binding upon the successors and assigns of each of the parties, including,
without the need for an express assignment or any consent by the Company
thereto, subsequent Holders of Notes and the Exchange Notes. The Company hereby
agrees to extend the benefits of this Agreement to any Holder of Notes and the
Exchange Notes, and any such Holder may specifically enforce the provisions of
this Agreement as if an original party hereto.
13. COUNTERPARTS. This agreement may be in signed counterparts,
each of which shall an original and all of which together shall constitute one
and the same agreement.
14. HEADINGS. The headings used herein are for convenience only
and shall not affect the construction hereof.
15. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York.
16. 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.
17. NOTES HELD BY THE COMPANY, ETC. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Notes or
Exchange Notes is required
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hereunder, Notes or Exchange Notes, as applicable, held by the Company or its
Affiliates (other than subsequent Holders of Notes or Exchange Notes if such
subsequent Holders are deemed to be Affiliates solely by reason of their
holdings of such Notes or Exchange Notes) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
18. SUBMISSION TO JURISDICTION. Except as set forth below, no
Claim may be commenced, prosecuted or continued in any court other than any New
York State or U.S. Federal court located in the Borough of Manhattan, the city
of New York, New York, which courts shall have exclusive jurisdiction over the
adjudication of such matters, and the Company consents to the non-exclusive
jurisdiction of such courts and personal service with respect thereto. The
Company hereby consents to personal jurisdiction, service and venue in any court
in which any Claim arising out of or in any way relating to this Agreement is
brought by any third party against any Initial Purchaser or any indemnified
party. Each of the Initial Purchasers and the Company (on their respective
behalf and, to the extent permitted by applicable law, on behalf of their
respective shareholders and affiliates) waives all right to trial by jury in any
action, proceeding or counterclaim (whether based upon contract, tort or
otherwise) in any way arising out of or relating to this Agreement. The Company
agrees that a final judgment in any such action, proceeding or counterclaim
brought in any such court shall be conclusive and binding upon the Company and
may be enforced in any other courts in the jurisdiction to which the Company is
or may be subject, by suit upon such judgment.
By execution and delivery of this Agreement, the Company
acknowledges that it has, by separate written instrument, appointed and
designated, without power of revocation, CT Corporation System, with offices on
the date hereof located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (and any
successor entity) as its authorized agent (the "AUTHORIZED AGENT") to accept and
acknowledge on its behalf service of any and all process which may be served in
any Claim in any way relating to or arising out of this Agreement or the
transactions contemplated hereby brought in any New York State or U.S. Federal
court located in the Borough of Manhattan, the city of New York, New York. Such
service may be made by delivering a copy of such process to the Company in care
of the Authorized Agent at the address specified above for the Authorized Agent
and obtaining a receipt therefor, and the Company hereby irrevocably authorizes
and directs the Authorized Agent to accept such service on its behalf. The
Company represents and warrants that the Authorized Agent has agreed to act as
said agent for service of process, and agrees that service of process in such
manner upon the Authorized Agent shall be deemed to the fullest extent permitted
by applicable law, in every respect effective service of process upon the
Company in any Claim. The Company further agrees to take any and all action,
including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
the Authorized Agent in full force and effect. Nothing herein contained shall,
however, in any manner limit the rights of the Initial Purchasers to serve
process in any other manner permitted by applicable law or obtain jurisdiction
over the
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Company or bring suits, actions or proceedings against the Company in such other
jurisdictions, and in such manner as may be permitted by applicable law.
19. WAIVER OF IMMUNITY. The Company irrevocably waives, to the
fullest extent permitted by applicable law, with respect to itself and its
revenues and assets (irrespective of their use or intended use), all immunity on
the grounds of sovereignty or other similar grounds from (i) suit, (ii)
jurisdiction of any court, (iii) relief by way of injunction or order for
specific performance or for recovery of property, (iv) attachment of the
Company's assets (whether before or after judgment) and (v) execution or
enforcement of any judgment to which the Company or its revenues or assets might
otherwise be entitled in any suit, action or proceeding in the courts of any
jurisdiction and irrevocably agrees, to the extent permitted by applicable law,
that the Company will not claim any such immunity in any suit, action or
proceeding.
20. JUDGMENT CURRENCY. The Company hereby covenants and agrees
that the following provisions shall apply to conversion of currency in the case
of this Agreement:
(a) If, for the purposes of obtaining judgment in, or enforcing
the judgment of, any court, it becomes necessary to convert a sum due
hereunder into any currency other than U.S. dollars, the parties hereto
agree, to the fullest extent that they may effectively do so, that the
rate of exchange used shall be the rate at which in accordance with
normal banking procedures Citigroup Global Markets Inc. could purchase
U.S. dollars with such other currency in the city of New York on the
Business Day preceding that on which final judgment is given. The
obligations of the Company in respect of any sum due from it to any
Initial Purchaser shall, notwithstanding any judgment in a currency
other than U.S. dollars, not be discharged until the first Business Day,
following receipt by such Initial Purchaser of any sum adjudged to be so
due in such other currency, on which (and only to the extent that ) such
Initial Purchaser may in accordance with normal banking procedures
purchase U.S. dollars with such other currency.
(b) The Company hereby agrees to indemnify the Initial
Purchasers and each other indemnified party related to any Initial
Purchaser against any loss incurred by any of them as a result of any
judgment or order being given or made for any amount due under this
Agreement and such judgment or order being expressed and paid in the
judgment currency and as a result of any variation as between (i) the
rate of exchange at which the U.S. dollar amount is converted into the
judgment currency for the purpose of such judgment or order and (ii) the
spot rate of exchange in the city of New York at which the Company on
the date of payment of such judgment or order is able to purchase U.S.
dollars with the amount of the judgment currency actually paid by the
Company. The foregoing indemnity shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "spot
rate of
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exchange" shall include any premiums and costs of exchange payable in connection
with the purchase of, or conversion into, U.S. dollars.
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EXECUTION COPY
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement among the
Company and the several Initial Purchasers.
Very truly yours,
NOVA Chemicals Corporation
By: /S/ XXXX X. XXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President, Finance & Treasurer
S-1
EXECUTION COPY
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
Citigroup Global Markets Inc.
Banc One Capital Markets, Inc.
CIBC World Markets Corp.
RBC Dominion Securities Corporation
Scotia Capital (USA) Inc.
TD Securities (USA) Inc.
By: Citigroup Global Markets Inc.
By: /S/ XXXXX XXXXXXXXXX
----------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Director
S-2
EXECUTION COPY
ANNEX A
Each Broker-Dealer that receives Exchange Notes for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a Broker-Dealer in connection
with resales of Exchange Notes received in exchange for Notes where such Notes
were acquired by such Broker-Dealer as a result of market-making activities or
other trading activities. The Company has agreed that, starting on the
Expiration Date (as defined herein) and ending on the close of business one year
after the Expiration Date, it will make this Prospectus available to any
Broker-Dealer for use in connection with any such resale. See "Plan of
Distribution."
EXECUTION COPY
ANNEX B
Each Broker-Dealer that receives Exchange Notes for its own
account in exchange for Notes, where such Notes were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See "Plan of Distribution."
EXECUTION COPY
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives Exchange Notes for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date and ending on the close of business one year after the
Expiration Date, they will make this Prospectus, as amended or supplemented,
available to any Broker-Dealer for use in connection with any such resale. In
addition, until __________ 200_, all dealers effecting transactions in the
Exchange Notes may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of
Exchange Notes by broker-dealers. Exchange Notes received by Broker-Dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Notes or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such Broker-Dealer and/or the purchasers of any such
Exchange Notes. Any Broker-Dealer that resells Exchange Notes that were received
by it for its own account pursuant to the Exchange Offer and any broker or
dealer that participates in a distribution of such Exchange Notes may be deemed
to be an "underwriter" within the meaning of the Securities Act and any profit
of any such resale of Exchange Notes and any commissions or concessions received
by any such Persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that by acknowledging that it
will deliver and by delivering a prospectus, a Broker-Dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of one year after the Expiration Date, the Company
will promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any Broker-Dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holder of the Notes) other than commissions or concessions of any brokers or
dealers and will indemnify the holders of the Notes (including any
Broker-Dealers) against certain liabilities, including liabilities under the
Securities Act.
EXECUTION COPY
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO
RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10
COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
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Address:
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Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the Exchange Notes in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of Exchange Notes
and it has no arrangements or understandings with any Person to participate in a
distribution of the Exchange Notes. If the undersigned is a Broker-Dealer that
will receive Exchange Notes for its own account in exchange for Notes, it
represents that the Notes to be exchanged for Exchange Notes were acquired by it
as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
