EXECUTION COPY
Registration Rights Agreement
Dated as of November 1, 2002
among
THE XXXXXXX WORKS
and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx Barney Inc.
BNP Paribas Securities Corp.
Fleet Securities, Inc.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into November 1, 2002, among THE XXXXXXX WORKS, a Connecticut corporation (the
"Company"), and XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, XXXXXXX
XXXXX BARNEY INC., BNP PARIBAS CORP. and FLEET SECURITIES, INC. (collectively,
the "Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated October 29,
2002 between the Company and the Purchasers (the "Purchase Agreement"), which
provides for the sale by the Company to the Purchasers of $150,000,000 aggregate
principal amount of the Company's 31/2% Senior Notes due 2007 and $200,000,000
aggregate principal amount of the Company's 49/10% Senior Notes due 2012
(collectively, the "Securities"). In order to induce the Purchasers to enter
into the Purchase Agreement, the Company has agreed to provide to the Purchasers
and their direct and indirect transferees the registration rights set forth in
this Agreement. The execution of this Agreement is a condition to the closing
under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Closing Date" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and also
includes the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such
depositary must have an address in the Borough of Manhattan, in the City of
New York.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
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"Exchange Securities" shall mean, collectively, (a) the 31/2% Series B
Senior Notes due 2007 and (b) the 49/10% Series B Senior Notes due 2012
issued by the Company under the Indenture, each series containing terms
identical to the Securities of the series for which it is being exchanged
(except that (i) interest thereon shall accrue from the last date on which
interest was paid on the Securities or, if no such interest has been paid,
from the date of their original issue (ii) the transfer restrictions
thereon shall be eliminated and (iii) certain provisions relating to an
increase in the stated rate of interest thereon shall be eliminated), to be
offered to Holders of Securities in exchange for Registrable Securities
pursuant to the Exchange Offer.
"Holders" shall mean any holder from time to time of Registrable
Securities (including any of the Purchasers).
"Indenture" shall mean the Indenture relating to the Securities dated
as of November 1, 2002 between the Company and JPMorgan Chase Bank, as
trustee, as the same may be amended, supplemented, waived or otherwise
modified from time to time in accordance with the terms thereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided
that whenever the consent or approval of Holders of a specified percentage
of Registrable Securities is required hereunder, Registrable Securities
held by the Company shall be disregarded in determining whether such
consent or approval was given by the Holders of such required percentage or
amount.
"Participating Broker-Dealer" shall mean any Holder (which may include
any of the Purchasers) that is a broker-dealer electing to exchange
Securities acquired for its own account as a result of market-making
activities or other trading activities for Exchange Securities.
"Person" shall mean an individual, partnership (general or limited),
limited liability company, corporation, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Purchasers" shall have the meaning set forth in the preamble.
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"Registrable Securities" shall mean the Securities; provided, however,
that the Securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to such Securities shall have been
declared effective under the 1933 Act and such Securities shall have been
disposed of pursuant to such Registration Statement, (ii) such Securities
shall have been sold to the public pursuant to Rule 144(k) (or any similar
provision then in force, but not Rule 144A) under the 1933 Act, (iii) such
Securities shall have ceased to be outstanding or (iv) such Securities have
been exchanged for Exchange Securities upon consummation of the Exchange
Offer (except in the case of Securities purchased directly from the Company
and continued to be held by the Purchasers).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including,
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. ("NASD") registration and filing fees, including,
if applicable, the fees and expenses of any "qualified independent
underwriter" (and its counsel) that is required to be retained by any
Holder in accordance with the rules and regulations of the NASD, (ii) all
fees and expenses incurred in connection with compliance with state
securities or blue sky laws and compliance with the rules of the NASD
(including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any of
the Exchange Securities or Registrable Securities and any filings with the
NASD), (iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) all fees and expenses incurred in connection with
the listing, if any, of any of the Registrable Securities on any securities
exchange or exchanges, (vi) the fees and disbursements of counsel for the
Company and of the independent public accountants of the Company, including
the expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance, (vii) the fees and expenses of
the Trustee, and any escrow agent or custodian, and (viii) any fees and
disbursements of the underwriters customarily required to be paid by
issuers or sellers of securities and the reasonable fees and expenses of
any special experts retained by the Company in connection with any
Registration Statement, but excluding fees of counsel to the underwriters
or the Holders and underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement of the Company which covers any
of the Exchange Securities or Registrable Securities pursuant to the
provisions of this Agreement, and all amendments and supplements to any
such Registration Statement, including post-effective amendments, in each
case including the
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Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the Registrable Securities on an appropriate
form under Rule 415 under the 1933 Act, or any similar rule that may be
adopted by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Special Shelf Counsel" shall have the meaning set forth in Section
2(c) hereof.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
2. Registration Under the 1933 Act. (a) Exchange Offer. The Company shall
use its best efforts (A) to file within 180 days after the Closing Date an
Exchange Offer Registration Statement covering the offer by the Company to the
Holders to exchange all of the Registrable Securities of each series for
Exchange Securities, (B) to cause such Exchange Offer Registration Statement to
be declared effective by the SEC within 270 days after the Closing Date, (C) to
cause such Registration Statement to remain effective until the closing of the
Exchange Offer and (D) to consummate the Exchange Offer within 300 days
following the Closing Date. The Exchange Securities will be issued under the
Indenture. Upon the effectiveness of the Exchange Offer Registration Statement,
the Company shall promptly commence the Exchange Offer, it being the objective
of such Exchange Offer to enable each Holder (other than Participating
Broker-Dealers) eligible and electing to exchange Registrable Securities for
Exchange Securities (assuming that such Holder is not an affiliate of the
Company within the meaning of Rule 405 under the 1933 Act, acquires the Exchange
Securities in the ordinary course of such Holder's business and has no
arrangements or understandings with any person to participate in the Exchange
Offer for the purpose of distributing the Exchange Securities) to trade such
Exchange Securities from and after their receipt without any limitations or
restrictions under the 1933 Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United
States.
In connection with the 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;
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(ii) keep the Exchange Offer open for acceptance for not less than 30
calendar days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law);
(iii) use the services of the Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Registrable Securities at any
time prior to 5:00 p.m., New York City time, on the last business day on
which the Exchange Offer shall remain open, by sending to the institution
specified in the notice, a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of
Registrable Securities delivered for exchange, and a statement that such
Holder is withdrawing his election to have such Securities exchanged;
(v) notify each Holder that any Registrable Security not tendered will
remain outstanding and continue to accrue interest, but will not retain any
rights under this Agreement (except in the case of Participating
Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating
to the Exchange Offer.
The Exchange Securities shall be issued under (i) the Indenture or (ii) an
indenture identical in all material respects to the Indenture and which, in
either case, has been qualified under the Trust Indenture Act of 1939, as
amended (the "TIA"), or is exempt from such qualification and shall provide that
the Exchange Securities shall not be subject to the transfer restrictions set
forth in the Securities. The terms of each series of Exchange Securities shall
provide that such series of Exchange Securities and the Securities of the
corresponding series shall vote and consent together on all matters as one class
and that none of the Exchange Securities or the Securities of any corresponding
series will have the right to vote or consent as a separate class on any matter.
As soon as practicable after the close of the Exchange Offer, the Company
shall:
(i) accept for exchange Registrable Securities duly tendered and not
validly withdrawn pursuant to the Exchange Offer in accordance with the
terms of the Exchange Offer Registration Statement and the letter of
transmittal which shall be an exhibit thereto;
(ii) deliver or cause to be delivered to the Trustee for cancellation
all Registrable Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver Exchange
Securities of the appropriate series to each Holder of Registrable
Securities so accepted for exchange in a principal amount equal to the
principal amount of the Registrable Securities of such Holder so accepted
for exchange.
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Interest on each Exchange Security will accrue from the last date on which
interest was paid on the Registrable Securities surrendered in exchange therefor
or, if no interest has been paid on the Registrable Securities, from the date of
its original issue. The Exchange Offer shall not be subject to any conditions,
other than (i) that the Exchange Offer or the making of any exchange by a
Holder, does not violate applicable law or any applicable interpretation of the
staff of the SEC, (ii) the due tendering of Registrable Securities in accordance
with the Exchange Offer, (iii) that each Holder of Registrable Securities
exchanged in the Exchange Offer shall have represented that (A) all Exchange
Securities to be received by it shall be acquired in the course of its business,
(B) at the time of the consummation of the Exchange Offer it shall have no
arrangement or understanding with any person to participate in the distribution
(within the meaning of the 0000 Xxx) of the Exchange Securities, (C) it is not
an "affiliate" of the Company as defined in Rule 405 of the 1933 Act, (D) if it
is not a broker-dealer, it is not engaged in, and does not intend to engage in,
the distribution of the Exchange Securities, (E) if it is a broker-dealer, it
will receive Exchange Securities in exchange for Securities that were acquired
for its own account as a result of market-making activities or other trading
activities, and it acknowledges that it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of those Exchange
Securities, and (F) if it is a broker-dealer, it did not purchase the Securities
being tendered in the Exchange Offer directly from the Company for resale
pursuant to Rule 144A or any other available exemption from registration under
the 1933 Act, and shall have made such other representations as may be
reasonably necessary under applicable SEC rules, regulations or interpretations
to render the use of Form S-4 or other appropriate form under the 1933 Act
available and (iv) that no action or proceeding shall have been instituted or
threatened in any court or by or before any governmental agency with respect to
the Exchange Offer which, in the Company's judgment, would reasonably be
expected to impair the ability of the Company to proceed with the Exchange
Offer. Upon the written request to the Company by the Purchasers, if practicable
and subject to applicable law, the Company shall inform the Purchasers of the
names and addresses of the Holders to whom the Exchange Offer is made, and the
Purchasers shall have the right to contact such Holders to facilitate the tender
of Registrable Securities in the Exchange Offer. For purposes hereof, the
Exchange Offer as to each series shall be deemed a separate offer, and the
failure to satisfy the conditions as to any one offer shall not affect any other
offer.
Each Holder hereby acknowledges and agrees that any Participating
Broker-Dealer and any such Holder using the Exchange Offer to participate in a
distribution of the Exchange Securities: (1) could not under SEC policy as in
effect on the date of this Agreement rely on the position of the SEC enunciated
in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon Capital
Holdings Corporation (available May 13, 1988), as interpreted in the SEC's
letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters
(including any no-action letter obtained based on the representations in clause
(iii) above), and (2) must comply with the registration and prospectus delivery
requirements of the 1933 Act in connection with the secondary resale transaction
and that such a secondary resale transaction should be covered by an effective
registration statement containing the selling security holder information
required by Item 507 and 508, as applicable, of Regulation S-K, and the SEC
standard instructions for filing forms under the 1933 Act, if the resales are of
Exchange Securities obtained by
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such Holder in exchange for Securities acquired by such Holder directly from the
Company.
(b) Shelf Registration. (i) If, because of any change in law or applicable
interpretations thereof by the staff of the SEC, (a) the Company is not
permitted to file the Exchange Offer Registration Statement or to effect the
Exchange Offer as contemplated by Section 2(a) hereof or (b) any Holder (other
than the Purchasers) is not eligible in the reasonable opinion of counsel
acceptable to the Company to participate in the Exchange Offer, or (ii) if for
any other reason the Exchange Offer Registration Statement is not declared
effective within 270 days after the Closing Date, or (iii) upon the request of
any Purchaser (with respect to any Registrable Securities which it acquired
directly from the Company) following the consummation of the Exchange Offer if
such Purchaser shall hold Registrable Securities which it acquired directly from
the Company and if such Purchaser is not permitted, in the opinion of counsel to
such Purchaser, pursuant to applicable law or applicable interpretation of the
staff of the SEC to participate in the Exchange Offer, the Company:
(A) shall, at its cost, as promptly as practicable, file with the SEC a
Shelf Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders from time to time in accordance with
the methods of distribution elected by the Majority Holders of such
Registrable Securities and set forth in such Shelf Registration Statement,
and use its best efforts to cause such Shelf Registration Statement to be
declared effective by the SEC by 300 days after the Closing Date. In the
event that the Company is required to file a Shelf Registration Statement
upon the request of any Holder (other than a Purchaser) not eligible to
participate in the Exchange Offer pursuant to clause (i)(b) above or upon
the request of any Purchaser pursuant to clause (iii) above, the Company
shall file and have declared effective by the SEC both an Exchange Offer
Registration Statement pursuant to Section 2(a) with respect to all
Registrable Securities and a Shelf Registration Statement (which may be a
combined Registration Statement with the Exchange Offer Registration
Statement) with respect to offers and sales of Registrable Securities held
by such Holder or such Purchaser after completion of the Exchange Offer;
(B) shall, at its cost, use its reasonable efforts to keep the Shelf
Registration Statement continuously effective (subject to Section
2(b)(i)(C)) in order to permit the Prospectus forming a part thereof to be
usable by Holders for a period of (1) two years from the date the Shelf
Registration Statement is declared effective by the SEC plus (2) the number
of days during which use of a Prospectus is suspended pursuant to Section
2(b)(i)(C), or for such shorter period that will terminate when all
Registrable Securities covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement or cease to be
outstanding or otherwise cease to be Registrable Securities (the
"Effectiveness Period"); provided, however, that the Effectiveness Period
in respect of the Shelf Registration Statement shall be extended to the
extent required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174 under the 1933 Act;
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(C) may suspend the use of the Prospectus forming a part of the Shelf
Registration Statement for a period not to exceed 30 days in any one
instance or an aggregate of 60 days in any twelve-month period for valid
business reasons to avoid premature public disclosure of a pending
corporate transaction, including, without limitation, pending acquisitions
and divestitures; provided that the Company promptly thereafter complies
with the requirements of Section 3, as then applicable, and in calculating
the length of the suspension period, there shall be included all days from
the date of the suspension to the date the Company has complied with
Section 3, as then applicable, or has notified each Holder that no action
is required of the Company under Section 3, as then applicable; and
(D) notwithstanding any other provisions hereof, shall use its best
efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933 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 part of any Shelf
Registration Statement, and any supplement to such Prospectus (as amended
or supplemented from time to time), does not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements, in light of the circumstances under which they were made,
not misleading.
The Company further agrees (i) that it shall not permit any securities
similar or substantially similar to the Registrable Securities to be included in
the Shelf Registration Statement and (ii) if necessary, to supplement or amend
the Shelf Registration Statement if reasonably requested by the Majority Holders
with respect to information relating to the Holders and otherwise as required by
Section 3(b) below, to use all reasonable efforts to cause any such amendment to
become effective and such Shelf Registration to become usable as soon as
thereafter practicable and to furnish to the Holders of Registrable Securities
copies of any such supplement or amendment promptly after its being used or
filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a) or 2(b) and, in the case of any
Shelf Registration Statement, will reimburse the Majority Holders for the
reasonable fees and disbursements of one firm or counsel designated in writing
by the Majority Holders to act as counsel for the Holders of the Registrable
Securities in connection therewith ("Special Shelf Counsel"). Each Holder shall
pay all expenses of its counsel other than as set forth in the preceding
sentence, underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. (i) The Company will be deemed not to
have used its best efforts to cause the Exchange Offer Registration
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Statement or the Shelf Registration Statement, as the case may be, to become, or
to remain, effective during the requisite period if it voluntarily takes any
action that would result in any such Registration Statement not being declared
effective or in the Holders of Registrable Securities covered thereby not being
able to exchange or offer and sell such Registrable Securities 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, so long as the Company promptly complies
with the requirements of Section 3(j) hereof, if applicable.
(ii) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been
declared effective, the offering of Registrable Securities pursuant to a
Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or
court, such Registration Statement will be deemed not to have been
effective during the period of such interference, until the offering of
Registrable Securities pursuant to such Registration Statement may legally
resume.
(e) Increase in Interest Rate. In the event that (i) the Exchange Offer
Registration Statement is not filed with the SEC on or prior to the 180th
calendar day after the Closing Date, (ii) the Exchange Offer Registration
Statement is not declared effective on or prior to the 270th calendar day after
the Closing Date or (iii) the Exchange Offer is not consummated or a Shelf
Registration Statement with respect to the Registrable Securities is not
declared effective on or prior to the 300th calendar day after the Closing Date
(each, a "Registration Default"), the interest rate borne by the Securities
shall be increased ("Additional Interest") by one-quarter of one percent (0.25%)
per annum with respect to the first 90-day period (or portion thereof) following
such 180-day period in the case of clause (i) above, such 270-day period in the
case of clause (ii) above, or such 300-day period in the case of clause (iii)
above. The additional interest payable as described in the immediately preceding
sentence will increase by an additional one-quarter of one percent (0.25%) per
annum for each subsequent 90-day period (or portion thereof); provided that the
aggregate increase in such interest rate will in no event exceed one-half of one
percent (0.50%) per annum. Upon (x) the filing of the Exchange Offer
Registration Statement after the 180-day period described in clause (i) above,
(y) the effectiveness of the Exchange Offer Registration Statement after the
270-day period described in clause (ii) above or (z) the consummation of the
Exchange Offer or the effectiveness of a Shelf Registration Statement, as the
case may be, after the 300-day period described in clause (iii) above, the
interest rate borne by the Securities from the date of such filing,
effectiveness or consummation, as the case may be, will be reduced to the
original interest rate.
The Company shall notify the Trustee within three business days after each
and every date on which a Registration Default occurs. Additional Interest shall
be paid by depositing with the Trustee, in trust, for the benefit of the Holders
of Registrable
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Securities, on or before the applicable semiannual interest payment date,
immediately available funds in sums sufficient to pay the Additional Interest
then due. The Additional Interest due shall be payable on each interest payment
date to the record Holder of Securities entitled to receive the interest payment
to be paid on such date as set forth in the Indenture. Each obligation to pay
Additional Interest shall be deemed to accrue from and including the date on
which a Registration Default occurs to but excluding the date on which all
Registration Defaults are cured.
(f) Specific Enforcement. Without limiting the remedies available to the
Purchasers and the Holders, the Company acknowledges that any failure by the
Company to comply with its obligations under Section 2(a) and Section 2(b)
hereof may result in material irreparable injury to the Purchasers or the
Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Purchasers or any Holder may obtain such relief as may
be required to specifically enforce the Company's obligations under Section 2(a)
and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement, within the time
period specified in Section 2, on the appropriate form under the 1933 Act, which
form (i) shall be selected by the Company, (ii) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Securities by the
selling Holders thereof and (iii) shall comply as to form in all material
respects with the requirements of the applicable form and include or incorporate
by reference all financial statements required by the SEC to be filed therewith
and (iv) shall comply in all respects with the requirements of Regulation S-T
under the 1933 Act, and use its best efforts to cause such Registration
Statement to become effective and remain effective in accordance with Section 2
hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under applicable
law to keep such Registration Statement effective for the applicable period;
cause each Prospectus to be supplemented by any required prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 under the 1933 Act; and
comply with the provisions of the 1933 Act, the 1934 Act and, in each case, the
rules and regulations promulgated thereunder with respect to the disposition of
all securities covered by each Registration Statement during the applicable
period in accordance with the intended method or methods of distribution by the
selling Holders thereof (including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities, at least seven business days prior to filing, that a
Shelf Registration Statement with respect to the Registrable Securities is being
filed and advising such Holders that the distribution of Registrable Securities
will be made in
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accordance with the method elected by the Majority Holders participating in the
Shelf Registration; and (ii) furnish to each Holder of Registrable Securities,
and to each underwriter of an underwritten offering of Registrable Securities,
if any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such other
documents as such Holder or underwriter may reasonably request, including
financial statements and schedules and, if the Holder so requests, all exhibits
to be filed (including those incorporated by reference) in order to facilitate
the public sale or other disposition of the Registrable Securities; and (iii)
subject to the last paragraph of Section 3, hereby consent to the use of the
Prospectus or any amendment or supplement thereto by each of the selling Holders
of Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or supplement
thereto provided that such use complies with all applicable laws and
regulations;
(d) use its best efforts to register or qualify the Registrable Securities
under all applicable state securities or "blue sky" laws of such jurisdictions
as any Holder of Registrable Securities covered by a Registration Statement and
each underwriter of an underwritten offering of Registrable Securities shall
reasonably request by the time the applicable Registration Statement is declared
effective by the SEC, to cooperate with the Holders in connection with any
filings required to be made with the NASD, and do any and all other acts and
things which may be reasonably necessary to enable such Holder to consummate the
disposition in each such jurisdiction of such Registrable Securities owned by
such Holder; provided, however, that the Company shall not be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), (ii) take any action which would subject it to general service of
process or (iii) subject itself to taxation in any such jurisdiction if it is
not then so subject;
(e) notify each Holder of Registrable Securities under a Shelf Registration
or any Participating Broker-Dealer who has notified the Company that it is using
the Exchange Offer Registration Statement as provided in paragraph (f) below and
one counsel for the Purchasers promptly and, if requested by such Holder,
Participating Broker-Dealer or counsel, confirm such advice in writing promptly
(i) when a Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective, (ii) of any
request by the SEC or any state securities authority for post-effective
amendments and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of the Company contained in
any underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to such offering cease to be true and correct in all
material respects, (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable Securities or
Exchange Securities, as the case may be, for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (vi) of the
happening of any
11
event or the discovery of any facts during the period a Shelf Registration
Statement is effective which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or which
requires the making of any changes in such Registration Statement or Prospectus
in order to make the statements therein not misleading and (vii) of any
determination by the Company that a post-effective amendment to a Registration
Statement would be appropriate;
(f) (A) in the case of the Exchange Offer, (i) include in the Exchange
Offer Registration Statement a "Plan of Distribution" section, which section
shall be reasonably acceptable to the Representatives (as defined in the
Purchase Agreement) covering the use of the Prospectus included in the Exchange
Offer Registration Statement by broker-dealers who have exchanged their
Registrable Securities for Exchange Securities for the resale of such Exchange
Securities, (ii) furnish to each broker-dealer who desires to participate in the
Exchange Offer, without charge, as many copies of each Prospectus included in
the Exchange Offer Registration Statement, including any preliminary prospectus,
and any amendment or supplement thereto, as such broker-dealer may reasonably
request, (iii) include in the Exchange Offer Registration Statement a statement
to the effect that any Participating Broker-Dealer who receives Exchange
Securities for Registrable Securities pursuant to the Exchange Offer, may be a
statutory underwriter and must deliver a prospectus meeting the requirements of
the 1933 Act in connection with any resale of such Exchange Securities, (iv)
subject to the last paragraph of Section 3, hereby consent to the use of the
Prospectus forming part of the Exchange Offer Registration Statement or any
amendment or supplement thereto, by any broker-dealer in connection with the
sale or transfer of the Exchange Securities covered by the Prospectus or any
amendment or supplement thereto, and (v) include in the transmittal letter or
similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision or one
substantially similar:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to
engage in, a distribution of Exchange Securities. If the
undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Registrable
Securities, it represents that the Registrable Securities to
be exchanged for Exchange Securities were acquired by it as a
result of market-making activities or other trading
activities and acknowledges that it will deliver a prospectus
meeting the requirements of the 1933 Act in connection with
any resale of such Exchange Securities pursuant to the
Exchange Offer; 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 1933 Act."
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in subclause (x) and by delivering a Prospectus in
connection with the
12
exchange of registrable Securities, the broker-dealer will not be deemed to
admit that it is an underwriter within the meaning of the 1933 Act"; and
(B) to the extent any Participating Broker-Dealer participates in the
Exchange Offer, the Company shall use its best efforts to maintain the
effectiveness of the Exchange Offer Registration Statement for a period of 90
days following the closing of the Exchange Offer; and
(C) the Company shall not be required to amend or supplement the Prospectus
contained in the Exchange Offer Registration Statement as would otherwise be
contemplated by Section 3(b), or take any other action as a result of this
Section 3(f), for a period exceeding 90 days after the last date for which
exchanges are accepted pursuant to the Exchange Offer (as such period may be
extended by the Company) and Participating Broker-Dealers shall not be
authorized by the Company to, and shall not, deliver such Prospectus after such
period in connection with resales contemplated by this Section 3(f).
(g) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement as soon as practicable
and provide immediate notice to each Holder of the withdrawal of any such order;
(h) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, and each underwriter, if any, without charge, at least
one conformed copy of each Registration Statement and any post-effective
amendment thereto, including financial statements and schedules (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(i) in the case of a Shelf Registration, cooperate with the selling Holders
of Registrable Securities to facilitate the timely preparation and delivery of
certificates, which may be global certificates, representing Registrable
Securities to be sold and not bearing any restrictive legends; and cause such
Registrable Securities to be in such denominations (consistent with the
provisions of the Indenture) and registered in such names as the selling Holders
or the underwriters, if any, may reasonably request at least two business days
prior to the closing of any sale of Registrable Securities;
(j) in the case of a Shelf Registration, upon the occurrence of any event
or the discovery of any facts, each as contemplated by Section 3(e)(vi) hereof,
use its best efforts to prepare a supplement or post-effective amendment to a
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities or Participating
Broker-Dealers, such Prospectus will not contain at the time of such delivery
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The Company agrees to notify each Holder
to suspend use of the Prospectus as promptly as practicable after the occurrence
of such an event, and each Holder hereby agrees to suspend use of the Prospectus
until the Company has amended or supplemented the Prospectus to correct such
misstatement or omission.
13
At such time as such public disclosure is otherwise made or the Company
determines that such disclosure is not necessary, in each case to correct any
misstatement of a material fact or to include any omitted material fact, the
Company agrees promptly to notify each Holder of such determination and to
furnish each Holder such numbers of copies of the Prospectus, as amended or
supplemented, as such Holder may reasonably request;
(k) obtain a CUSIP number for all Exchange Securities, or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement, and provide the Trustee with printed certificates for
the Exchange Securities or the Registrable Securities, as the case may be, in a
form eligible for deposit with the Depositary;
(l) in the case of a Shelf Registration Statement, prior to the completion
of the distribution by the Purchasers of the Registrable Securities registered
thereunder as evidenced by a notice in writing from the Representatives (as
defined in the Purchase Agreement) on behalf of the Purchasers to the Company,
the Company will furnish to the Representatives (as defined in the Purchase
Agreement) on behalf of the Purchasers, at least 24 hours (or such shorter
period as is reasonably required by the circumstances) prior to the filing
thereof with the SEC, a draft of each document which is to be filed by the
Company with the SEC and, if not otherwise available on the SEC XXXXX retrieval
service, incorporated by reference in the Shelf Registration Statement or the
Prospectus forming part thereof;
(m) (i) cause the Indenture to be qualified under the TIA in connection
with the registration of the Exchange Securities, or Registrable Securities, as
the case may be, (ii) cooperate with the Trustee and the Holders to effect such
changes to the Indenture as may be required for the Indenture to be so qualified
in accordance with the terms of the TIA and (iii) execute, and use its best
efforts to cause the Trustee to execute, all documents as may be required to
effect such changes, and all other forms and documents required to be filed with
the SEC to enable the Indenture to be so qualified in a timely manner;
(n) in the case of a Shelf Registration, enter into agreements (including
underwriting agreements) and take all other customary and appropriate actions
(including those reasonably requested by the Majority Holders) in order to
expedite or facilitate the disposition of such Registrable Securities and in
such connection whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration:
(i) make such representations and warranties to the Holders of such
Registrable Securities and the underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in similar
underwritten offerings as may be reasonably requested by them;
(ii) 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, and the
holders of a majority in
14
principal amount of the Registrable Securities being sold) addressed to
each selling Holder and the underwriters, if any, covering the matters
customarily covered in opinions requested in sales of securities or
underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters;
(iii) in the case of an underwritten offering of Registrable Securities
only, obtain "cold comfort" letters and updates thereof from the Company's
independent certified public accountants addressed to the underwriters, and
will use reasonable best efforts to have such letter addressed to the
selling Holders of Registrable Securities, such letters to be in customary
form and covering matters of the type customarily covered in "cold comfort"
letters to underwriters in connection with similar underwritten offerings;
(iv) enter into a securities sales agreement with the Holders and an
agent of the Holders providing for, among other things, the appointment of
such agent for the selling Holders for the purpose of soliciting purchases
of Registrable Securities, which agreement shall be in form, substance and
scope customary for similar offerings;
(v) if an underwriting agreement is entered into, cause the same to set
forth indemnification provisions and procedures substantially equivalent to
the indemnification provisions and procedures set forth in Section 5 hereof
with respect to the underwriters and all other parties to be indemnified
pursuant to said Section or, at the request of any underwriters, in the
form customarily provided to such underwriters in similar types of
transactions; and
(vi) deliver such documents and certificates as may be reasonably
requested and as are customarily delivered in similar offerings.
The above shall be done at (i) the effectiveness of such Registration Statement
(and, if appropriate, each post-effective amendment thereto) and (ii) each
closing under any underwriting or similar agreement as and to the extent
required thereunder. In the case of any underwritten offering, the Company shall
provide written notice to the Holders of all Registrable Securities of such
underwritten offering at least 30 days prior to the filing of a prospectus
supplement for such underwritten offering. Such notice shall (x) offer each such
Holder the right to participate in such underwritten offering, (y) specify a
date, which shall be no earlier than 10 days following the date of such notice,
by which such Holder must inform the Company of its intent to participate in
such underwritten offering and (z) include the instructions such Holder must
follow in order to participate in such underwritten offering;
(o) in the case of a Shelf Registration or if a Prospectus is required to
be delivered by any Participating Broker-Dealer in the case of an Exchange
Offer, make available for inspection by representatives of the Holders of the
Registrable Securities and any underwriters participating in any disposition
pursuant to a Shelf Registration Statement, any Participating Broker-Dealer and
any one counsel or accountant retained
15
by any of the foregoing, all financial and other records, pertinent corporate
documents and properties of the Company reasonably requested by any such
persons, and cause the respective officers, directors, employees, and any other
agents of the Company to supply all information reasonably requested by any such
representative, underwriter, one special counsel or accountant in connection
with a Registration Statement;
(p) (i) in the case of an Exchange Offer Registration Statement, a
reasonable time prior to the filing of any Exchange Offer Registration
Statement, any Prospectus forming a part thereof, any amendment to an Exchange
Offer Registration Statement or amendment or supplement to such Prospectus (but
not including any amendment to the Exchange Offer Registration Statement or
amendment or supplement to such Prospectus through the filing of any document
which is to be incorporated by reference therein), provide copies of such
document to the Purchasers on behalf of the Holders of Registrable Securities
and make such changes in any such document prior to the filing thereof as the
Purchasers or their counsel may reasonably request in a timely manner and,
except as otherwise required by applicable law, not file any such document in a
form of which the Purchasers on behalf of the Holders of Registrable Securities
shall not have previously been furnished a copy or to which the Purchasers on
behalf of the Holders of Registrable Securities or their counsel shall
reasonably object in a timely manner, and make the representatives of the
Company available for discussion of such documents as shall be reasonably
requested by the Purchasers; and
(ii) in the case of a Shelf Registration, a reasonable time prior to filing
any Shelf Registration Statement, any Prospectus forming a part thereof, any
amendment to such Shelf Registration Statement or amendment or supplement to
such Prospectus (but not including any amendment to the Shelf Registration
Statement or amendment or supplement to such Prospectus through the filing of
any document which is to be incorporated by reference therein), provide copies
of such document to the Holders of Registrable Securities to be included
therein, to the Shelf Special Counsel and to the underwriter or underwriters of
an underwritten offering of Registrable Securities, if any, make such changes in
any such document prior to the filing thereof as the Holders, the Shelf Special
Counsel, or the underwriter or underwriters reasonably request in a timely
manner and not file any such document in a form of which the Majority Holders,
the Shelf Special Counsel or any underwriter or underwriters shall not have
previously been furnished a copy or to which any such Person shall reasonably
object in a timely manner, and make the representatives of the Company available
for discussion of such document as shall be reasonably requested by any such
Person.
(q) in the case of a Shelf Registration, if any similar debt securities of
the Company are then listed on any securities exchange, use its best efforts to
cause all Registrable Securities to be listed on any such securities exchange if
requested by the Majority Holders or by the underwriter or underwriters of an
underwritten offering of Registrable Securities, if any;
(r) in the case of a Shelf Registration, use its best efforts to cause the
Registrable Securities to be rated with the appropriate rating agencies, if so
requested by
16
the Majority Holders or by the underwriter or underwriters of an underwritten
offering of Registrable Securities, if any, unless the Registrable Securities
are already so rated;
(s) otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering at least 12 months which
shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
thereunder;
(t) provide reasonable cooperation and assistance in any filings required
to be made with the NASD and in the performance of any due diligence
investigation by any underwriter and its counsel; and
(u) upon consummation of the Exchange Offer, deliver a customary opinion or
opinions of counsel to the Company addressed to the Trustee for the benefit of
all Holders of Registrable Securities participating in the Exchange Offer, and
which includes an opinion that (i) the Company has duly authorized, executed and
delivered the Exchange Securities, and the related indenture, and (ii) each of
the Exchange Securities and related indenture constitute a legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its respective terms (with customary exceptions).
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Securities to promptly furnish to the Company such
information regarding such Holder and the proposed distribution by such Holder
of such Registrable Securities as the Company may from time to time reasonably
request in writing.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event or the
discovery of any facts, each of the kind described in Section 3(e)(ii)-(vi)
hereof, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to a Registration Statement until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
3(j) hereof, and, if so directed by the Company, such Holder will deliver to the
Company (at its expense) all copies in its possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice. If the
Company shall give any such notice to suspend the disposition of Registrable
Securities pursuant to a Shelf Registration Statement as a result of the
happening of any event or the discovery of any facts, each of the kind described
in Section 3(e)(vi) hereof, the Company shall be deemed to have used its best
efforts to keep the Shelf Registration Statement effective during such period of
suspension provided that the Company shall use its best efforts to file and have
declared effective (if an amendment) as soon as practicable an amendment or
supplement to the Shelf Registration Statement and shall extend the period
during which the Registration Statement shall be maintained effective pursuant
to this Agreement by the number of days during the period from and including the
date of the giving of such notice to and including the date when
17
the Holders shall have received copies of the supplemented or amended Prospectus
necessary to resume such dispositions.
4. Underwritten Registrations. If any of the Registrable Securities covered
by any Shelf Registration are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Majority Holders of such Registrable
Securities included in such offering and shall be reasonably acceptable to the
Company.
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Securities on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
5. Indemnification and Contribution. (a) The Company shall indemnify and
hold harmless each Purchaser, each Holder, including Participating
Broker-Dealers, each underwriter who participates in an offering of Registrable
Securities, their respective affiliates, and the respective directors, officers,
employees, agents and each Person, if any, who controls any of such parties
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all losses, liabilities, claims, damages and
expenses whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) pursuant to which Exchange Securities
or Registrable Securities were registered under the 1933 Act, including all
documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all losses, liabilities, claims, damages and
expenses whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred (including
fees and disbursements of counsel chosen by any indemnified party),
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any court or governmental
agency or body,
18
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under subparagraph (i) or (ii)
of this Section 5(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by the Purchasers,
any Holder, including Participating Broker-Dealers or any underwriter expressly
for use in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto).
(b) In the case of a Shelf Registration, each Holder agrees, severally and
not jointly, to indemnify and hold harmless the Company, the Purchasers, each
underwriter who participates in an offering of Registrable Securities and the
other selling Holders and each of their respective directors and officers
(including each officer of the Company who signed the Shelf Registration
Statement) and each Person, if any, who controls the Company, the Purchasers,
any underwriter or any other selling Holder within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, against any and all losses,
liabilities, claims, damages and expenses described in the indemnity contained
in Section 5(a) hereof, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the Shelf
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Holder, as the case may be,
expressly for use in the Shelf Registration Statement (or any amendment
thereto), or the Prospectus (or any amendment or supplement thereto); provided,
however, that no such Holder shall be liable for any claims hereunder in excess
of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability which it may have other than
on account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of such action. In no event shall the
indemnifying party or parties be liable for the fees and expenses of more than
one counsel (in addition to any local counsel) for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 5 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement,
19
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) In order to provide for just and equitable contribution in
circumstances in which any of the indemnity provisions set forth in this Section
5 are for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company, the Purchasers
and the Holders shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity agreement
incurred by the Company, the Purchasers and the Holders, as incurred; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any Person that was not guilty of such fraudulent misrepresentation. As between
the Company, the Purchasers and the Holders, such parties shall contribute to
such aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement in such proportion as shall be
appropriate to reflect (i) the relative benefits received by the Company on the
one hand, the Purchasers on another hand, and the Holders on another hand, from
the offering of the Exchange Securities or Registrable Securities included in
such offering, and (ii) the relative fault of the Company on the one hand, the
Purchasers on another hand, and the Holders on another hand, with respect to the
statements or omissions which resulted in such loss, liability, claim, damage or
expense, or action in respect thereof, as well as any other relevant equitable
considerations. The Company, the Purchasers and the Holders of the Registrable
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 5 were to be determined by pro rata allocation or by
any other method of allocation that does not take into account the relevant
equitable considerations. For purposes of this Section 5, each affiliate of a
Purchaser or Holder, and each director, officer, employee, agent and Person, if
any, who controls a Purchaser or Holder or such affiliate within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as such Purchaser or Holder, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each Person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The parties hereto agree that any underwriting
discount or commission or reimbursement of fees paid to any Purchaser pursuant
to the Purchase Agreement shall not be deemed to be a benefit received by any
Purchaser in connection with the offering of the Exchange Securities or
Registrable Securities included in such offering.
6. Miscellaneous. (a) Rule 144 and Rule 144A. For so long as the Company is
subject to the reporting requirements of Section 13 or 15 of the 1934 Act, the
Company covenants that it will file the reports required to be filed by it under
the 1933 Act and Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder, that if it ceases to be so required
to file such reports, it will upon the request of any Holder of Registrable
Securities (i) make publicly available such information as is necessary to
permit sales
20
pursuant to Rule 144 under the 1933 Act, (ii) deliver such information to a
prospective purchaser as is necessary to permit sales pursuant to Rule 144A
under the 1933 Act and it will take such further action as any Holder of
Registrable Securities may reasonably request, and (iii) take such further
action that is reasonable in the circumstances, in each case, to the extent
required from time to time to enable such Holder to sell its Registrable
Securities without registration under the 1933 Act within the limitation of the
exemptions provided by (x) Rule 144 under the 1933 Act, as such Rule may be
amended from time to time, (y) Rule 144A under the 1993 Act, as such Rule may be
amended from time to time, or (z) any similar rules or regulations hereafter
adopted by the SEC. Upon the request of any Holder of Registrable Securities,
the Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into nor will
the Company on or after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's
other issued and outstanding securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless the Company has obtained the written consent of Majority Holders affected
by such amendment, modification, supplement, waiver or departure; provided,
however, that no amendment, modification, supplement or waiver or consent to any
departure from the provisions of Section 5 hereof shall be effective as against
any Holder of Registrable Securities unless consented to in writing by such
Holder.
(d) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if
to a Holder, at the most current address given by such Holder to the Company by
means of a notice given in accordance with the provisions of this Section 6(d),
which address initially is, with respect to a Purchaser, the address set forth
in the Purchase Agreement; and (ii) if to the Company, initially at the
Company's address set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 6(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee, at the
address specified in the Indenture.
21
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms hereof or of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities, such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement
and, if applicable, the Purchase Agreement, and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiary. The Purchasers shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Holders, on the other hand, and shall have the right to enforce
such agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder.
(g) Restriction on Resales. Until the expiration of two years after the
original issuance of the Securities, the Company will not, and will cause its
"affiliates" (as such term is defined in Rule 144(a)(1) under the 0000 Xxx) not
to, resell any Securities which are "restricted securities" (as such term is
defined under Rule 144(a)(3) under the 0000 Xxx) that have been reacquired by
any of them.
(h) 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.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
THE XXXXXXX WORKS
By:
------------------------------------
Name:
Title:
Confirmed and accepted as of the date
first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX XXXXX BARNEY INC.
BNP PARIBAS SECURITIES CORP.
FLEET SECURITIES, INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
------------------------------------
Name:
Title:
By: XXXXXXX XXXXX BARNEY INC.
By:
------------------------------------
Name:
Title:
For themselves and as representatives of the other Purchasers.
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