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EXHIBIT 4(m)
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of August 12,
1997, by and between Insilco Corporation, a Delaware corporation (the
"Company"), and Xxxxxxx, Xxxxx & Co., XxXxxxxx & Company Securities, Inc., and
Citicorp Securities, Inc., as purchasers (collectively, the "Purchasers") of
the 10.25% Senior Subordinated Notes due 2007 of the Company.
The Company proposes to issue and sell to the Purchasers, upon the
terms set forth in the Purchase Agreement (as defined herein), the Securities
(as defined herein). As an inducement to the Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations of the
Purchasers thereunder, the Company agrees with the Purchasers for the benefit
of holders (as defined herein) from time to time of the Registrable Securities
(as defined herein) as follows:
1. Certain Definitions.
For purposes of this Exchange and Registration Rights Agreement, the
following terms shall have the following respective meanings:
"Base Interest" shall mean the interest that would otherwise
accrue on the Securities under the terms thereof and the Indenture,
without giving effect to the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer
registered with the Commission under the Exchange Act.
"Closing" shall mean the date of the closing of the issuance
and sale of Securities pursuant to the Purchase Agreement.
"Commission" shall mean the United States Securities and
Exchange Commission, or any other federal agency at the time
administering the Exchange Act or the Securities Act, whichever is the
relevant statute for the particular purpose.
"Effective Time" in the case of (i) an Exchange Registration,
shall mean the time and date as of which the Commission declares the
Exchange Offer Registration Statement effective or as of which the
Exchange Offer Registration Statement otherwise becomes effective;
(ii) a Shelf Registration, shall mean the time and date as of which the
Commission declares the Shelf Registration Statement effective or as
of which the Shelf Registration Statement otherwise becomes effective;
and (iii) a Market Making Shelf Registration, shall mean the time and
date as of which Commission declares the Market Making Shelf
Registration Statement effective or as of which time the Market Making
Shelf Registration otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable
Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(d)(ii) or
3(d)(iii) hereof.
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"Exchange Act" shall mean the Securities Exchange Act of 1934,
or any successor thereto, as the same shall be amended from time to
time.
"Exchange Offer" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto
in Section 3(c) hereof.
"Exchange Offer Registration Statement" shall have the meaning
assigned thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto
in Section 2(a) hereof.
The term "holder" shall mean each of the Purchasers and other
persons who acquire Registrable Securities from time to time (including
any successors or assigns), in each case for so long as such person owns
any Registrable Securities.
"Indenture" shall mean the Indenture, dated as of August 12,
1997, between the Company and The Bank of New York, a New York banking
corporation, as Trustee, as the same shall be amended from time to time.
"Market Making Shelf Registration" shall have the meaning
assigned thereto in Section 2(c) hereof.
"Market Making Shelf Registration Statement" shall have the
meaning assigned thereto in Section 2(c) hereof.
"Notice and Questionnaire" means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in
the form of Exhibit A hereto.
The term "person" shall mean a corporation, association,
partnership, limited liability company, trust, organization, business,
individual, government or political subdivision thereof or governmental
agency.
"Purchase Agreement" shall mean the Purchase Agreement dated as
of August 7, 1997, between the Purchasers and the Company relating to
the Securities.
"Registrable Securities" shall mean the Securities; provided,
however, that a Security shall cease to be a Registrable Security when
(i) in the circumstances contemplated by Section 2(a) hereof, the
Security has been exchanged for an Exchange Security in an Exchange
Offer as contemplated in Section 2(a) hereof; provided that if prior to
the completion of the Exchange Offer, existing Commission
interpretations have been changed such that the Exchange Securities
received by holders in the Exchange Offer would not be transferable by
such holders (other than Restricted Holders) without restriction under
the Securities Act, then such Exchange Securities shall be Registrable
Securities; provided, further, that any Exchange Security received by a
broker-dealer in an Exchange Offer in exchange for a Registrable
Security that was not acquired by the broker-dealer directly from
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the Company will also be a Registrable Security through and including
the earlier of the 180th day after the Exchange Offer is completed or
such time as such broker-dealer no longer owns such Security; provided,
further, however, that any such Securities that, pursuant to the last
two sentences of Section 2(a) hereof, are included in a prospectus for
use in connection with resales by broker-dealers shall be deemed to
be Registrable Securities with respect to Section 5, 6 and 9 until
resale of such Exchange Securities has been effected within the
180-day period referred to in Section 2(a) hereof, (ii) in the
circumstances contemplated by Section 2(b) hereof, a Shelf
Registration Statement registering such Security under the Securities
Act has been declared or becomes effective and such Security has been
sold or otherwise transferred by the holder thereof pursuant to and
in a manner contemplated by such effective Shelf Registration
Statement; (iii) such Security is sold pursuant to Rule 144 under
circumstances in which any legend borne by such Security relating to
restrictions on transferability thereof, under the Securities Act or
otherwise, is removed by the Company or pursuant to the Indenture;
(iv) such Security is eligible to be sold pursuant to paragraph (k)
of Rule 144; or (v) such Security shall cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto
in Section 2(d) hereof.
"Registration Default period" shall have the meaning assigned
thereto in Section 2(d) hereof.
"Registration Expenses" shall have the meaning assigned thereto
in Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an
affiliate of the Company within the meaning of Rule 405, (ii) a holder
who acquires Exchange Securities outside the ordinary course of such
holder's business, (iii) a holder who has arrangements or understandings
with any person to participate in the Exchange offer for the purpose of
distributing Exchange Securities and (iv) a holder that is a
broker-dealer, but only with respect to Exchange Securities received by
such broker-dealer pursuant to an Exchange Offer in exchange for
Registrable Securities acquired by the broker-dealer directly from the
Company.
"Rule 144," "Rule 405," and "Rule 415" shall mean, in each
case, such rule promulgated under the Securities Act (or any successor
provision), as the same shall be amended from time to time.
"Securities" shall mean, collectively, the 10.25% Senior
Subordinated Notes due 2007 of the Company to be issued and sold to the
Purchasers, and securities issued in exchange therefor or in lieu
thereof pursuant to the Indenture, other than Exchange Securities.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
The term "Secondary Offer Registration Statement" shall mean
(i) the Shelf Registration Statement required to be filed by the Company
pursuant to Section 2(b) hereof and/or (ii) the Market Making Shelf
Registration Statement required to be filed by the Company pursuant
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to Section 2(c) hereof, in each case, as applicable. As used herein,
references to a Secondary Offer Registration Statement in the singular
shall, if applicable, be deemed to be in the plural.
"Shelf Registration" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned
thereto in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in
Section 2(d) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to
time.
Unless the context otherwise requires, any reference herein in a
"Section" or "clause" refers to a Section or clause, as the case may be, of
this Exchange and Registration Rights Agreement, and the words "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Exchange and Registration Rights Agreement as a whole and not to any particular
Section or other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to
file under the Securities Act, as soon as practicable, but no later than 60
days after the Closing, a registration statement relating to an offer to
exchange (such registration statement, the "Exchange Offer Registration
Statement", and such offer, the "Exchange Offer") any and all of the Securities
for a like aggregate principal amount of debt securities issued by the Company,
which debt securities are substantially identical to the Securities (and are
entitled to the benefits of a trust indenture which is substantially identical
to the Indenture or is the Indenture and which has been qualified under the
Trust Indenture Act), except that they have been registered pursuant to an
effective registration statement under the Securities Act and do not contain
provisions for the additional interest contemplated in Section 2(d) below (such
new debt securities hereinafter called "Exchange Securities"). The Company
agrees to use its best efforts to cause the Exchange Offer Registration
Statement to become effective under the Securities Act as soon as practicable,
but no later than 115 days after the Closing. The Exchange Offer will be
registered under the Securities Act on the appropriate form and will comply
with all applicable tender offer rules and regulations under the Exchange Act.
The Company further agrees to use its best efforts to commence and complete
the Exchange Offer promptly, but no later than 45 days after such registration
statement has become effective, hold the Exchange Offer open for at least 30
days and issue Exchange Securities for all Registrable Securities that have
been properly tendered and not withdrawn on or prior to the expiration of the
Exchange Offer. The Exchange Offer will be deemed to have been "completed" only
if the debt securities received by holders other than Restricted Holders in the
Exchange Offer for Registrable Securities are, upon receipt, transferable by
each such holder without need for further compliance with Section 5 of the
Securities Act and the Exchange Act (except for the requirement to deliver a
prospectus included in the Exchange Offer Registration Statement applicable to
resales by any broker-dealer of Exchange Securities received by such
broker-dealer pursuant to an Exchange Offer in exchange
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for Registrable Securities other than those acquired by the broker-dealer
directly from the Company) and without material restrictions under the blue sky
or securities laws of a substantial majority of the States of the United States
of America. The Exchange Offer shall be deemed to have been completed upon the
earlier to occur of (i) the Company having exchanged the Exchange Securities for
all outstanding Registrable Securities pursuant to the Exchange Offer and (ii)
the Company having exchanged, pursuant to the Exchange Offer, Exchange
Securities for all Registrable Securities that have been properly tendered and
not withdrawn before the expiration of the Exchange Offer, which shall be on a
date that is at least 30 days following the commencement of the Exchange Offer.
The Company agrees (x) to include in the Exchange Offer Registration Statement a
prospectus for use in connection with any resales of Exchange Securities by a
broker-dealer, other than resales of Exchange Securities received by a
broker-dealer pursuant to an Exchange Offer in exchange for Registrable
Securities acquired by the broker-dealer directly from the Company, and (y) to
keep such Exchange Offer Registration Statement effective for a period (the
"Resale Period") beginning when Exchange Securities are first issued in the
Exchange Offer and ending upon the earlier of the expiration of the 180th day
after the Exchange Offer has been completed or such time as such broker-dealers
no longer own any Registrable Securities. With respect to such Exchange Offer
Registration Statement, each broker-dealer that holds Exchange Securities
received in an Exchange Offer in exchange for Registrable Securities not
acquired by it directly from the Company shall have the benefit of the rights of
indemnification and contribution set forth in Sections 6(a), (d), (e) and (f)
hereof.
(b) If prior to the time the Exchange Offer is completed existing Commission
interpretations are changed such that the Exchange Securities received by
holders other than Restricted Holders in the Exchange Offer for Registrable
Securities are not or would not be, upon receipt, transferable by each such
holder without need for further compliance with Section 5 of the Securities Act
(except for the requirement to deliver a prospectus included in the Exchange
Offer Registration Statement applicable to resales by any broker-dealer of
Exchange Securities received by such broker-dealer pursuant to an Exchange
Offer in exchange for Registrable Securities other than those acquired by the
broker-dealer directly from the Company), in lieu of conducting the Exchange
Offer contemplated by Section 2(a) the Company shall file under the Securities
Act as soon as practicable, but no later than 60 days after the Closing, a
"shelf" registration statement providing for the registration of, and the sale
on a continuous or delayed basis by the holders of, all of the Registrable
Securities, pursuant to Rule 415 or any similar rule that may be adopted by
the Commission (such filing, the "Shelf Registration" and such registration
statement, the "Shelf Registration Statement"). In addition, in the event that
the Purchasers shall not have resold all of the Securities initially purchased
by them from the Company pursuant to the Purchase Agreement prior to the
consummation of the Exchange Offer, the Company shall file under the Securities
Act as soon as practicable a Shelf Registration Statement. The Company agrees
to use its best efforts (i) to cause the Shelf Registration Statement to become
or be declared effective no later than 100 days after such Shelf Registration
Statement is filed and to keep such Shelf Registration Statement continuously
effective in order to permit the prospectus forming a part thereof to be
usable by holders for resales of Registrable Securities for a period ending on
the earlier of the second anniversary of the Effective Time or such time as
there are no longer any Registrable Securities outstanding, provided, however,
that no holder shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement or to use the prospectus forming a part thereof
for resales of Registrable Securities unless such holder is an Electing
Holder, and (ii) after the Effective Time of the Shelf Registration Statement,
promptly upon the request of any holder of Registrable Securities that is
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not then an Electing Holder, to take any action reasonably necessary to enable
such holder to use the prospectus forming a part thereof for resales of
Registrable Securities, including, without limitation, any action necessary to
identify such holder as a selling securityholder in the Shelf Registration
Statement, provided, however, that nothing in this clause (ii) shall relieve any
such holder of the obligation to return a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(d)(iii) hereof. The
Company further agrees to supplement or make amendments to the Shelf
Registration Statement, as and when required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or rules and regulations
thereunder for shelf registration, and the Company agrees to furnish to each
Electing Holder copies of any such supplement or amendment prior to its being
used or promptly following its filing with the Commission.
(c) The Company shall file under the Securities Act, on the date that the
Exchange Offer Registration Statement (or in lieu thereof, the Shelf
Registration Statement) is filed with the Commission, a "shelf" registration
statement (which may be the Exchange Offer Registration Statement or the Shelf
Registration Statement if permitted by the rules an regulations of the
Commission) pursuant to Rule 415 under the Securities Act or any similar rule
that may be adopted by the Commission providing for the registration of, and
the sale on a continuous or delayed basis in secondary transactions by Xxxxxxx,
Xxxxx & Co. of, Securities (in the event of a Shelf Registration) or Exchange
Securities (in the event of an Exchange Offer)(such filing, the "Market Making
Shelf Registration", and such registration statement, the "Market Making Shelf
Registration Statement"). The Company agrees to use its best efforts to cause
the Market Making Shelf Registration to become or be declared effective on or
prior to (i) the date the Exchange Offer is completed pursuant to Section 2(a)
above or (ii) the date the Shelf Registration becomes or is declared
effective pursuant to Section 2(b) above, and to keep such Market Making
Shelf Registration continuously effective for so long as Xxxxxxx, Sachs & Co.
may be required to deliver a prospectus in connection with transactions in the
Securities or the Exchange Securities, as the case may be. In the event that
Xxxxxxx, Xxxxx & Co. holds Securities at the time an Exchange Offer is to be
conducted under Section 2(a) above, the Company agrees that the Market Making
Shelf Registration shall provide for the resale by Xxxxxxx, Sachs & Co. of such
Securities and shall be kept continuously effective for so long as Xxxxxxx,
Xxxxx & Co. may be required to deliver a prospectus in connection with the sale
of such Securities. The Company further agrees to supplement or make amendments
to the Market Making Shelf Registration, as and when required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Market Making Shelf Registration or by the Securities Act or
rules and regulations thereunder for shelf registration, and the Company agrees
to furnish to Xxxxxxx, Sachs & Co., copies of any such supplement or amendment
prior to its being used or promptly following its filing with the Commission.
Notwithstanding the foregoing, the Company may suspend the offering and sale
under the Market Making Shelf Registration Statement for a period or periods
the Board of Directors of the Company reasonably determines to be necessary,
but in any event not to exceed 90 days in each year during which the Market
Making Shelf Registration Statement is required to be effective and usable
hereunder (measured from the Effective Time of the Market Making Shelf
Registration Statement to successive anniversaries thereof) if (A)(i) the
Company shall be engaged in a material acquisition, disposition or other
transaction and (ii)(x) such transaction is required to be disclosed in the
Market Making Shelf Registration Statement, the related
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prospectus or any amendment or supplement thereto, or the failure by the Company
to disclose such transaction in the Market Making Shelf Registration Statement
or related prospectus, or any amendment or supplement thereto, as then amended
or supplemented, would cause the Market Making Shelf Registration Statement,
prospectus or amendment or supplement thereto, to contain an untrue statement of
material fact or omit to state a material fact necessary in order to make the
statement therein not misleading in light of the circumstances under which they
were made, (y) information regarding the existence of such transaction has not
then been publicly disclosed by or on behalf of the Company and (z) the Board of
Directors of the Company determines in good faith that disclosure of such
transaction would not be in the best interest of the Company or would have a
material adverse effect on the consummation of such transaction, and (R) the
Company notifies Xxxxxxx, Xxxxx & Co. within five days after such Board of
Directors makes the relevant determination set forth in clause (A).
(d) In the event that (i) the Company has not filed the Exchange Offer
Registration Statement or Shelf Registration Statement on or before the date on
which such registration statement is required to be filed pursuant to Section
2(a) or 2(b), respectively, or (ii) such Exchange Offer Registration Statement
or Shelf Registration Statement has not become effective or been declared
effective by the Commission on or before the date on which such registration
statement is required to become or be declared effective pursuant to Section
2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been completed
within 45 days after the initial effective date of the Exchange Offer
Registration related to the Exchange Offer (if the Exchange Offer is then
required to be made) or (iv) any Exchange Offer Registration Statement or Shelf
Registration Statement required by Section 2(a) or 2(b) hereof is filed and
declared effective but shall thereafter either be withdrawn by the Company or
shall become subject to an effective stop order issued pursuant to Section 8(d)
of the Securities Act suspending the effectiveness of such registration
statement (except as specifically permitted herein) without being succeeded
immediately by an additional registration statement filed and declared effective
(each such event referred to in clause (i) through (iv), a "Registration
Default" and each period during which a Registration Default has occurred and is
continuing, a "Registration Default Period''), then, as liquidated damages for
such Registration Default, subject to the provisions of Section 9(b), special
interest ("Special Interest"), in addition to the Base Interest, shall accrue at
a per annum rate of 0.25% for the first 90 days of the Registration Default
Period, at a per annum rate of 0.50% for the second 90 days of the Registration
Default Period, at a per annum rate of 0.75% for the third 90 days of the
Registration Default Period and at a per annum rate of 1.0% thereafter for the
remaining portion of the Registration Default Period.
(e) The Company shall take all action to be taken by it to ensure that
the transactions contemplated herein are effected as so contemplated.
(f) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference herein to
any post-effective amendment to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time.
3. Registration Procedures.
If the Company files a registration statement pursuant to Section 2(a),
Section 2(b) or
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Section 2(e), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer, the Shelf
Registration or the Market Making Shelf Registration, whichever may be first,
the Company shall qualify the Indenture under the Trust Indenture Act of 1939.
(b) In the event that such qualification would require the appointment
of a new trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall, as soon as
reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable but
no later than 60 days after the Closing, an Exchange Offer Registration
Statement on any form which may be utilized by the Company and which
shall permit the Exchange Offer and resales of Exchange Securities by
broker-dealers during the Resale Period to be effected as contemplated
by Section 2(a), and use its best efforts to cause such Exchange Offer
Registration Statement to become effective as soon as practicable
thereafter, but not later than 115 days after the Closing;
(ii) as soon as practicable prepare and file with the Commission such
amendments and supplements to such Exchange Offer Registration Statement
and the prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Exchange Offer Registration Statement
for the periods and purposes contemplated in Section 2(a) hereof and as
may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such Exchange
Offer Registration Statement, and promptly provide each broker-dealer
holding Exchange Securities with such number of copies of the prospectus
included therein (as then amended or supplemented), in conformity in all
material respects with the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder, as such broker-dealer reasonably may request prior to the
expiration of the Resale Period, for use in connection with resales of
Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration
statement, and confirm such advice in writing, (A) when such Exchange
Offer Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been
filed and, with respect to such Exchange Offer Registration Statement or
any post-effective amendment, when the same has become effective, (B) of
any comments by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto or any
request by the Commission for amendments or supplements to such Exchange
Offer Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such Exchange Offer Registration
Statement or the initiation or threatening of any proceedings for that
purpose, (D) if at any time during the Resale Period the representations
and warranties of the Company contemplated by Section 5 cease to be true
and correct in all material respects, (E)
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of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Exchange Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose, or (F) if at any time during the Resale Period when a
prospectus is required to be delivered under the Securities Act, such
Exchange Offer Registration Statement, prospectus, prospectus amendment
or supplement or post-effective amendment, or any document incorporated
by reference in any of the foregoing, does not conform in all material
respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances
then existing;
(iv) in the event that the Company would be required to provide notice
pursuant to Section 3(c)(iii)(F) above to any broker-dealers holding
Exchange Securities, without delay prepare and furnish to each such
holder a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall conform in
all material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and shall not 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 in
light of the circumstances then existing;
(v) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of such Exchange Offer Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
(vi) use its best efforts to (A) register or qualify the Exchange
Securities under the securities laws or blue sky laws of such
jurisdictions as are contemplated by Section 2(a), if such registration
or qualification is required by such laws, no later than the
commencement of the Exchange Offer, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
until the expiration of the Resale Period and (C) take any and all other
actions as may be reasonably necessary or advisable to enable each
broker-dealer holding Exchange Securities to consummate the disposition
thereof in such jurisdictions; provided, however, that the Company shall
not be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section
3(c)(vi), (2) consent to general service of process in any such
jurisdiction or (3) make any changes to its certificate of incorporation
or by-laws or any agreement between it and its stockholders;
(vii) use its best efforts to obtain the consent or approval of each
governmental agency or authority, whether federal, state or local, which
may be required to effect the Exchange Registration, the Exchange Offer
and the offering and sale of Exchange Securities by broker-dealers
during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not later
than the applicable Effective Time of the Exchange Offer Registration
Statement;
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(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon
as practicable but no later than eighteen months after the effective
date of such Exchange Offer Registration Statement, an earning statement
of the Company and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158
thereunder).
(d) In connection with the Company's obligations with respect to the
Shelf Registration and the Market Making Shelf Registration, as
applicable, the Company shall use its best efforts to cause the
applicable Secondary Offer Registration Statement to permit the
disposition of Registrable Securities by the holders thereof, in the
case of the Shelf Registration, and of Securities or Exchange Securities
by Xxxxxxx, Xxxxx & Co., in the case of a Market Making Shelf
Registration (subject to the second paragraph of Section 2(c) hereof),
in accordance with the intended method or methods of disposition thereof
provided for in the applicable Secondary Offer Registration Statement.
In connection therewith, the Company shall, as soon as reasonably
possible (or as otherwise specified):
(i) (A) prepare and file with the Commission, as soon as practicable,
but in any case within the time periods specified in Section 2(b) or
Section 2(c) hereof, as applicable, a Secondary Offer Registration
Statement on any form which may be utilized by the Company, which shall
(x) register all of the Registrable Securities, in the case of a Shelf
Registration, and the Securities and Exchange Securities, in the case of
a Market Making Shelf Registration, for resale by the holders thereof in
accordance with such method or methods of disposition as may be
specified by the holders of the Registrable Securities as, from time to
time may be Electing Holders, in the case of a Shelf Registration, or
Xxxxxxx, Sachs & Co., in the case of a Market Making Shelf Registration
and (y) be, in the case of a Market Making Shelf Registration, in a form
approved by Xxxxxxx, Xxxxx & Co., and (B) use its best efforts to cause
such Secondary Offer Registration Statement to become effective as soon
as practicable after such filing, but in any case within the time
periods specified in Section 2(b) or Section 2(c) hereof, as applicable;
(ii) not less than 30 calendar days prior to the Effective Time of the
Shelf Registration Statement, mail the Notice and Questionnaire to the
holders of Registrable Securities; no holder shall be entitled to be
named as a selling securityholder in the Shelf Registration Statement as
of the Effective Time, and no holder shall be entitled to use the
prospectus forming a part thereof for resales of Registrable Securities
at any time, unless such holder has returned a completed and signed
Notice and Questionnaire to the Company by the deadline for response set
forth therein; provided, however, holders of Registrable Securities
shall have at least 28 calendar days from the date on which the Notice
and Questionnaire is first mailed to such holders to return a completed
and signed Notice and Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration Statement,
upon the request of any holder of Registrable Securities that is not
then an Electing Holder, promptly send a Notice and Questionnaire to
such holder, provided that the Company shall not be required to take any
action to name such holder; provided that the Company shall not be
required to take any action to name such holder as a selling
securityholder in the Shelf Registration Statement or to enable such
holder to use the prospectus forming a part thereof for resales of
Registrable Securities until such holder has returned a completed and
signed Notice and Questionnaire to the Company;
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(iv) as soon as practicable (A) prepare and file with the Commission
such amendments and supplements to the Secondary Offer Registration
Statement and the prospectus included therein as may be necessary to
effect and maintain the effectiveness of such Secondary Offer
Registration Statement for the period specified in Section 2(b) or
Section 2(c) hereof, as applicable, and as may be required by the
applicable rules and regulations of the Commission and the instructions
applicable to the form of such Secondary Offer Registration Statement,
and, in the case of an amendment to or supplement of the Market Making
Shelf Registration Statement, each in a form approved by Xxxxxxx, Sachs
& Co. and (B) furnish to the Electing Holders, in the case of a Shelf
Registration, and Xxxxxxx, Xxxxx & Co., in the case of a Market Making
Shelf Registration, copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with the
Commission;
(v) comply with the provisions of the Securities Act with respect to
the disposition of all of the Registrable Securities, Securities or
Exchange Securities, as applicable, covered by such Secondary Offer
Registration Statement in accordance with the intended methods of
disposition provided for therein by the Electing Holders, in the case of
a Shelf Registration, or Xxxxxxx, Sachs & Co., in the case of a Market
Making Shelf Registration;
(vi) provide (A) with respect to a Shelf Registration, the Electing
Holders and not more than one counsel for all the Electing Holders; (B)
with respect to a Market Making Shelf Registration, Xxxxxxx, Xxxxx & Co.
and its counsel; and (C) in either case, the underwriters (which term,
for purposes of this Exchange and Registration Rights Agreement shall
include a person deemed to be an underwriter within the meaning of
Section 2(11) of the Securities Act), if any, thereof, the sales or
placement agent, if any, therefor, and counsel for such underwriters or
agent, the opportunity to participate in the preparation of such
Secondary Offer Registration Statement, each prospectus included therein
or filed with the Commission and each amendment or supplement thereto;
(vii) for a reasonable period prior to the filing of such Secondary
Offer Registration Statement, and throughout the period specified in
Section 2(b) or Section 2(c) hereof, as applicable, make available at
reasonable times at the Company's principal place of business or such
other reasonable place for inspection by the persons referred to in
Section 3(d)(vi) who shall certify to the Company that they have a
current intention to sell the Registrable Securities pursuant to the
Shelf Registration, or the Securities or Exchange Securities pursuant to
the Market Making Shelf Registration, as applicable, such financial and
other information and books and records of the Company, and cause the
officers, employees, counsel and independent certified public
accountants of the Company to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel referred
to in such Section 3(d)(vi), to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act; provided;
however, that each such party shall be required to maintain in
confidence and not to disclose to any other person any information or
records reasonably designated by the Company as being confidential,
until such time as (A) such information becomes a matter of public
record (whether by virtue of its inclusion in such registration
statement or otherwise), or (B) such person shall be required so to
disclose such information pursuant to a subpoena or order of any court
or other governmental agency or body having jurisdiction over the matter
(subject to the requirements of such order, and only
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after such person shall have given the Company prompt prior written
notice of such requirement), or (C) such information is required to be
set forth in such Secondary Offer Registration Statement or the
prospectus included therein or in an amendment to such Secondary Offer
Registration Statement or an amendment of supplement to such prospectus
in order that such Secondary Offer Registration Statement, prospectus,
amendment or supplement, as the case may be, complies with applicable
requirements of the federal securities laws and the rules and
regulations of the Commission and does not contain an untrue statement
of a material fact or omit to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(viii) promptly notify each of the Electing Holders or Xxxxxxx, Sachs
& Co., as applicable, any sales or placement agent therefor and any
underwriter thereof (which notification may be made through any managing
underwriter that is a representative of such underwriter for such
purpose) and confirm such advice in writing, (A) when such Secondary
Offer Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been
filed, and, with respect to such Secondary Offer Registration Statement
or any post-effective amendment, when the same has become effective, (B)
of any comments by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto or any
request by the Commission for amendments or supplements to such
Secondary Offer Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such Secondary Offer Registration
Statement or the initiation or threatening of any proceedings for that
purpose, (D) if at any time during which such Secondary Offer
Registration Statement is effective the representations and warranties
of the Company contemplated by Section 3(d)(xvii) or Section 5 cease to
be true and correct in all material respects, (F) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Registrable Securities or the Securities or
Exchange Securities, as applicable, for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, or (F) if
at any time when a prospectus is required to be delivered under the
Securities Act, such Secondary Offer Registration Statement, prospectus,
prospectus amendment or supplement or post-effective amendment, or any
document incorporated by reference in any of the foregoing, does not
conform in all material respects to the applicable requirements of the
foregoing, does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder or contains an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(ix) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of such Secondary Offer Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
(x) if requested by any managing underwriter or underwriters, any
placement or sales agent, any Electing Holder or Xxxxxxx, Xxxxx & Co.,
promptly incorporate in a prospectus supplement or post-effective
amendment such information as is required by the applicable rules and
regulations of the Commission and as such managing underwriter or
underwriters, such agent, such Electing Holder or Xxxxxxx, Sachs & Co.
specify should be
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included therein relating to the terms of the sale of such Registrable
Securities, Securities or Exchange Securities, as applicable, including
information with respect to the principal amount thereof being sold by
Xxxxxxx, Xxxxx & Co., such Electing Holder or agent or to any
underwriters, a description of Xxxxxxx, Sachs & Co., such Electing
Holder or agent or to any underwriters, a description of Xxxxxxx, Xxxxx
& Co. and the name and description of such Electing Holder, agent or
underwriter, the offering price of such Registrable Securities,
Securities or Exchange Securities, as applicable, and any discount,
commission or other compensation payable in respect thereof and the
purchase price being paid therefor by such underwriters, and with
respect to any other terms of the offering of the Registrable
Securities, Securities or Exchange Securities, as applicable, to be sold
by Xxxxxxx, Sachs & Co., such Electing Holder or agent or to such
underwriters, as applicable; and to make all required filings of such
prospectus supplement or post-effective amendment promptly after
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
(xi) furnish to Xxxxxxx, Xxxxx & Co., each Electing Holder, each
placement or sales agent, if any, therefor, each underwriter, if any,
thereof and the respective counsel referred to in Section 3(d)(vi) an
executed copy (or, in the case of an Electing Holder, a conformed copy)
of such Secondary Offer Registration Statement, each such amendment and
supplement thereto (in each case including all exhibits thereto (in the
case of an Electing Holder of Registrable Securities, upon request) and
documents incorporated by reference therein) and such number of copies
of such Secondary Offer Registration Statement (excluding exhibits
thereto and documents incorporated by reference therein unless
specifically so requested by Xxxxxxx, Sachs & Co., such Electing Holder,
agent or underwriter, as the case may be) and of the prospectus included
in such Secondary Offer Registration Statement (including each
preliminary prospectus and any summary prospectus), in conformity in all
material respects with the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the
Commission thereunder, and such other documents, as Xxxxxxx, Xxxxx &
Co., such Electing Holder, agent, if any, and underwriter, if any, may
reasonably request in order to facilitate the offering and disposition
of the Registrable Securities owned by such Electing Holder, the
Securities or Exchange Securities owned by Xxxxxxx, Sachs & Co., such
Electing Holder, agent and underwriter to satisfy the prospectus
delivery requirements of the Securities Act; and the Company hereby
consents to the use of such prospectus (including such preliminary and
summary prospectus) and any amendment or supplement thereto by Xxxxxxx,
Sachs & Co. (subject to the second paragraph of Section 2(c) hereof),
each such Electing Holder and any such agent and underwriter, in each
case in the form most recently provided to such party by the Company, in
connection with the offering and sale of the Registrable Securities,
Securities or Exchange Securities covered by the prospectus (including
such preliminary and summary prospectus) or any supplement or amendment
thereto;
(xii) use its best efforts to (A) register or qualify the Registrable
Securities, Securities or Exchange Securities, as applicable, to be
included in such Secondary Offer Registration Statement under such
securities laws or blue sky laws of such jurisdictions as any Electing
Holder, Goldman, Sachs & Co. and each placement or sales agent, if any,
therefor and each underwriter, if any, thereof shall reasonably request,
(B) keep such registrations or qualifications in effect and comply with
such laws so as to permit the continuance of offers,
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sales and dealings therein in such jurisdictions during the period the
Shelf Registration is required to remain effective under Section 2(b)
above or the period the Market Making Shelf Registration is required to
remain effective under Section 2(c) above, as applicable, and for so
long as may be necessary to enable Xxxxxxx, Xxxxx & Co., any such
Electing Holder, agent or underwriter to complete its distribution of
Registrable Securities, Securities or Exchange Securities, as
applicable, pursuant to such Secondary Offer Registration Statement and
(C) take any and all other actions as may be reasonable necessary or
advisable to enable each such Electing Holder and Xxxxxxx, Sachs & Co.,
as applicable, such agent, if any, and such underwriter, if any, to
consummate the disposition in such jurisdictions of such Registrable
Securities, Securities or Exchange Securities, as applicable; provided,
however, that the Company shall not be required for any such purpose to
(1) qualify as a foreign corporation in any jurisdiction wherein it
would not otherwise be required to qualify but for the requirements of
this Section 3(d)(xii), (2) consent to general service of process in any
such jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders;
(xiii) use its best efforts to obtain the consent or approval of each
governmental agency or authority, whether federal, state or local, which
may be required of the Company or, with respect to the Registrable
Securities, Securities or Exchange Securities, as applicable, to effect
the Shelf Registration or the Market Making Shelf Registration or the
offering or sale in connection therewith or to enable the selling holder
or holders or Xxxxxxx, Xxxxx & Co. to offer, or to consummate the
disposition of, their Registrable Securities, Securities or Exchange
Securities, as applicable;
(xiv) cooperate with the Electing Holders or Xxxxxxx, Sachs & Co. and
the managing underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities,
Securities or Exchange Securities, as applicable, to be sold, which
certificates shall be printed, lithographed or engraved, or otherwise
produced, and which shall not bear any restrictive legends; and, in the
case of an underwritten offering, enable such Registrable Securities,
Securities or Exchange Securities, as applicable, to be in such
denominations and registered in such names as the managing underwriters
may request at least two business days prior to any sale of the
Registrable Securities, Securities or Exchange Securities, as
applicable;
(xv) provide a CUSIP number for all Registrable Securities,
Securities or Exchange Securities, as applicable, not later than the
applicable Effective Time;
(xvi) enter into one or more underwriting agreements, engagement
letters, agency agreements, "best efforts" underwriting agreements or
similar agreements, as appropriate, including customary provisions
relating to indemnification and contribution, and take such other
actions in connection therewith as, in the case of a Shelf Registration,
any Electing Holders aggregating at least 20% in aggregate principal
amount of the Registrable Securities at the time outstanding or, in the
case of a Market Making Shelf Registration, Xxxxxxx, Xxxxx & Co., shall
request in order to expedite, or facilitate the disposition of such
Registrable Securities, Securities or Exchange Securities, as
applicable;
(xvii) whether or not an agreement of the type referred to in Section
3(d)(xvi) hereof is entered into and whether or not any portion of the
offering contemplated by such Secondary
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Offer Registration Statement is an underwritten offering or is made
through a placement or sales agent or any other entity, (A) make such
representations and warranties to the Electing Holders, Xxxxxxx, Sachs &
Co. and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof in form, substance and scope as are
customarily made in connection with an offering of debt securities
pursuant to any appropriate agreement or to a registration statement
filed on the form applicable to the Shelf Registration or the Market
Making Shelf Registration, as applicable; (B) obtain an opinion of
counsel to the Company in customary form and covering such matters, of
the type customarily covered by such an opinion, as the managing
underwriters, if any; and in the case of a Shelf Registration, as any
Electing Holders of at least 20% in aggregate principal amount of the
Registrable Securities at the time outstanding or, in the case of a
Market Making Shelf Registration, as Xxxxxxx, Xxxxx & Co. may reasonably
request, addressed to such Electing Holder or Electing Holders, Xxxxxxx,
Sachs & Co. and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the effective date of such
Secondary Offer Registration Statement (and if such Secondary Offer
Registration Statement contemplates an underwritten offering of a part
or all of the Registrable Securities, Securities or Exchange Securities,
as applicable, dated the date of the closing under the underwriting
agreement relating thereto) and the date of filing of an amendment or
supplement to such Secondary Offer Registration Statement or any other
document that is incorporated in such Secondary Offer Registration
Statement by reference and includes financial data with respect to a
fiscal quarter or year, as the case may be, (it being agreed that the
matters to be covered by such opinion shall include the due
incorporation and good standing of the Company and its subsidiaries; the
qualification of the Company and its subsidiaries to transact business
as foreign corporations; the due authorization, execution and delivery
of the relevant agreement of the type referred to in Section 3(d)(xvi)
hereof; the due authorization, execution, authentication and issuance,
and the validity and enforceability, of the Registrable Securities,
Securities or Exchange Securities, as applicable; the absence of
material legal or governmental proceedings involving the Company; the
absence of a breach by the Company or any of its subsidiaries of, or a
default under, material agreements binding upon the Company or any
subsidiary of the Company; the absence of governmental approvals
required to be obtained by the Company in connection with the Shelf
Registration or the Market Making Shelf Registration, as applicable, the
offering and sale of the Registrable Securities, Securities or Exchange
Securities, as applicable, this Exchange and Registration Rights
Agreement or any agreement of the type referred to in Section 3(d)(xvi)
hereof, except such approvals as may be required under state securities
or blue sky laws; the material compliance as to form of such Secondary
Offer Registration Statement and any documents incorporated by reference
therein and of the Indenture with the requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the
Commission thereunder, respectively; and, as of the date of the opinion
and of the Secondary Offer Registration Statement or most recent post
effective amendment thereto, as the case may be, the absence from such
Secondary Offer Registration Statement and the prospectus included
therein, as then amended or supplemented, and from the documents
incorporated by reference therein (in each case other than the financial
statements and other financial information contained therein) of an
untrue statement of a material fact or the omission to state therein a
material fact necessary to make the statements therein not misleading
(in the case of such documents, in the light of the circumstances
existing at the time that such documents were filed with the Commission
under the Exchange Act)); (C) obtain a "cold comfort" letter or letters
from the independent certified public accountants of the Company
addressed to the selling Electing Holders, Xxxxxxx, Xxxxx &
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Co., the placement or sales agent, if any, therefor or the underwriters,
if any, thereof, dated (i) the effective date of such Secondary Offer
Registration Statement and (ii) the effective date of any prospectus
supplement to the prospectus included in such Secondary Offer
Registration Statement or amendment or supplement to such Secondary
Offer Registration Statement or any other document that is incorporated
in such Secondary Offer Registration Statement by reference and includes
unaudited or audited financial statements as of a date or for a period
subsequent to that of the latest such statements included in such
prospectus (and, if such Secondary Offer Registration Statement
contemplates an underwritten offering pursuant to any prospectus
supplement to the prospectus included in such Secondary Offer
Registration Statement or post-effective amendment to such Secondary
Offer Registration Statement which includes unaudited or audited
financial statements as of a date or for a period subsequent to that of
the latest such statements included in such prospectus, dated the date
of the closing under the underwriting agreement relating thereto), such
letter or letters to be in customary form and covering such matters of
the type customarily covered by letters of such type; (D) deliver such
documents and certificates, including officers' certificates, as may be
reasonably requested, in the case of a Shelf Registration, by any
Electing Holders of at least 20% in aggregate principal amount of the
Registrable Securities at the time outstanding or, in the case of a
Market Making Shelf Registration, by Xxxxxxx, Sachs & Co., and, in
either case, the placement or sales agent, if any, therefor and the
managing underwriters, if any, thereof, dated the effective date of such
Secondary Offer Registration Statement (and if such Secondary Offer
Registration Statement contemplates an underwritten offering of a part
or all of the Registrable Securities, Securities or Exchange Securities,
as applicable, dated the date of the closing under the underwriting
agreement relating thereto) and the date of filing of an amendment or
supplement to such Secondary Offer Registration Statement or any other
document that is incorporated in such Secondary Offer Registration
Statement by reference and includes financial data with respect to a
fiscal quarter or year, as the case may be, to evidence the accuracy of
the representations and warranties made pursuant to clause (A) above or
those contained in Section 5(a) hereof and the compliance with or
satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreement entered into by the Company;
and (E) undertake such obligations relating to expense reimbursement,
indemnification and contribution as are provided in Section 6 hereof;
(xviii) notify in writing each holder of Registrable Securities
affected thereby and Xxxxxxx, Xxxxx & Co., of any proposal by the
Company to amend or waive any provision of this Exchange and
Registration Rights Agreement pursuant to Section 9(h) hereof and of any
amendment or waiver effected pursuant thereto, each of which notices
shall contain the text of the amendment or waiver proposed or effected,
as the case may be;
(xix) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities, Securities or
Exchange Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution" (within the
meaning of the Rules of Fair Practice and the By-Laws of the National
Association of Securities Dealers, Inc. ("NASD") or any successor
thereto, as amended from time to time) thereof, whether as a holder of
such Registrable Securities, Securities or Exchange Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker dealer in complying with the
requirements of such Rules and By-Laws, including by (A) if such Rules
or By-Laws shall so require, engaging a "qualified
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independent underwriter" (as defined in Rule 2720 (or any successor
thereto)) to participate in the preparation of the Secondary Offer
Registration Statement relating to such Registrable Securities,
Securities or Exchange Securities, as applicable, to exercise usual
standards of due diligence in respect thereto and, if any portion of the
offering contemplated by such Secondary Offer Registration Statement is
an underwritten offering or is made through a placement or sales agent,
to recommend the yield of such Registrable Securities, Securities or
Exchange Securities, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters
provided in Section 6 hereof (or to such other customary extent as may
be requested by such underwriter), and (C) providing such information to
such broker-dealer as may be required in order for such broker-dealer to
comply with the requirements of the Rules of Fair Practice of the NASD:
(xx) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon
as practicable but in any event not later than eighteen months after the
effective date of such Secondary Offer Registration Statement, an
earning statement of the Company and its subsidiaries complying with
Section 11(a) of the Securities Act (including, at the option of the
Company, Rule 158 thereunder); and
(xxi) for so long as Xxxxxxx, Xxxxx & Co. may be required to
deliver a prospectus in connection with the offer and sale of Securities
or Exchange Securities in secondary transactions, to furnish to Xxxxxxx,
Sachs & Co. copies of all reports or other communications (financial or
other) furnished to stockholders of the Company, and deliver to Xxxxxxx,
Sachs & Co. (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange or interdealer automated quotation system
on which the Securities or Exchange Securities or any other securities
of the Company are listed or quoted and the documents specified in
Section 1019 of the Indenture, as in effect on the date of Closing; and
(ii) such additional information concerning the business and financial
condition of the Company as Xxxxxxx, Xxxxx & Co. may from time to time
reasonably request (such financial statements to be on a consolidated
basis to the extent the accounts of the Company are consolidated in
reports furnished to its stockholders generally or to the Commission).
(e) In the event that the Company would be required to provide notice
pursuant to Section 3(d)(viii)(F) above to the Electing Holders, Xxxxxxx, Sachs
& Co., the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, the Company shall without delay prepare and
furnish to each such person a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, Securities or Exchange Securities, as applicable, such
prospectus shall conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act and the rules and regulations
of the Commission thereunder and shall not 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 in light of the
circumstances then existing. Each Electing Holder and Xxxxxxx, Xxxxx & Co.
agrees, that upon receipt of any notice from the Company pursuant to Section
3(d)(viii)(F) hereof, such Electing Holder and Xxxxxxx, Sachs & Co. shall
forthwith discontinue the disposition of Registrable Securities, Securities or
Exchange Securities, as applicable, pursuant to the Secondary Offer Registration
Statement applicable to such Registrable Securities, Securities or Exchange
Securities until such Electing Holder or Xxxxxxx, Xxxxx & Co., as applicable,
shall have received copies of such amended or
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supplemented prospectus, and if so directed by the Company, such Electing
Holder or Xxxxxxx, Sachs & Co. shall deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such Electing
Holder's or Xxxxxxx, Xxxxx & Co.'s possession of the prospectus covering such
Registrable Securities, Securities or Exchange Securities at the time of
receipt of such notice.
(f) In addition to the information required to be provided in a Notice
and Questionnaire by each Electing Holder as to which any Shelf Registration
pursuant to Section 2(b) is being effected or to be provided by Xxxxxxx, Sachs
& Co. in connection with the Market Making Shelf Registration pursuant to
Section 2(c), the Company may require an Electing Holder or Xxxxxxx Xxxxx &
Co., as applicable, to furnish to the Company such additional information
regarding such Electing Holder or Xxxxxxx, Sachs & Co. and such Electing
Holder's or Xxxxxxx, Xxxxx & Co.'s intended method of distribution of the
applicable Registrable Securities, Securities or Exchange Securities as the
Company may from time to time reasonably request in writing, but only to the
extent that such information is required in order to comply with the Securities
Act. Each such Electing Holder and Xxxxxxx, Sachs & Co. agrees to notify the
Company as promptly as practicable of any inaccuracy or change in information
previously furnished by such Electing Holder or Xxxxxxx, Xxxxx & Co., as the
case may be, to the Company or of the occurrence of any event in either case as
a result of which any prospectus relating to such Shelf Registration or Market
Making Shelf Registration, as applicable, contains or would contain an untrue
statement of a material fact regarding such Electing Holder or Xxxxxxx, Sachs &
Co. or such Electing Holder's or Xxxxxxx, Xxxxx & Co.'s intended method of
disposition of the applicable Registrable Securities, Securities or Exchange
Securities or omits to state any material fact regarding such Electing Holder
or Xxxxxxx, Sachs & Co. or such Electing Holder's or Xxxxxxx, Xxxxx & Co.'s
intended method of disposition of the applicable Registrable Securities,
Securities or Exchange Securities required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing, and promptly to furnish to the Company any additional information
required to correct and update any previously furnished information or required
so that such prospectus shall not contain, with respect to such Electing Holder
or Xxxxxxx, Sachs & Co. or the disposition of the applicable Registrable
Securities, Securities or Exchange Securities, 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 in light of the
circumstances then existing.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly all
expenses incident to the Company's performance of or compliance with this
Exchange and Registration Rights Agreement, including (a) all Commission and
any NASD registration, filing and review fees and expenses including fees and
disbursements of counsel for the placement or sales agent or underwriters in
connection with such registration, filing and review, (b) all fees and expenses
in connection with the qualification of the Registrable Securities, Securities
or Exchange Securities, as applicable, for offering and sale under the State
securities and blue sky laws referred to in Section 3(d)(xii) hereof and
determination of their eligibility for investment under the laws of such
jurisdictions as any managing underwriters or the Electing Holders or Xxxxxxx,
Xxxxx & Co. may designate, including any fees and disbursements of counsel for
the Electing Holders, Xxxxxxx, Sachs & Co. or the underwriters in connection
with such qualification and determination, (c) all expenses relating to the
preparation, printing, production, distribution and
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reproduction of each registration statement required to be filed hereunder, each
prospectus included therein or prepared for distribution pursuant hereto, each
amendment or supplement to the foregoing, the expenses of preparing the
Securities or Exchange Securities for delivery and the expenses of printing or
producing any underwriting agreements, agreements among underwriters, selling
agreements and blue sky or legal investment memoranda and all other documents in
connection with the offering, sale or delivery of Securities or Exchange
Securities to be disposed of (including certificates representing the Securities
or Exchange Securities), (d) messenger, telephone and delivery expenses relating
to the offering, sale or delivery of Securities or Exchange Securities and the
preparation of documents referred in clause (c) above, (e) fees and expenses of
the Trustee under the Indenture, any agent of the Trustee and any counsel for
the Trustee and of any collateral agent or custodian, (f) internal expenses
(including all salaries and expenses of the Company's officers and employees
performing legal or accounting duties), (g) fees, disbursements and expenses of
counsel and independent certified public accountants of the Company (including
the expenses of any opinions or "cold comfort" letters required by or incident
to such performance and compliance), (h) fees, disbursements and expenses of any
"qualified independent underwriter" engaged pursuant to Section 3(d)(xix)
hereof, (i) fees, disbursements and expenses of one counsel for the Electing
Holders retained in connection with a Shelf Registration, as selected by the
Electing Holders of at least a majority in aggregate principal amount of the
Registrable Securities held by Electing Holders, and one counsel for Xxxxxxx,
Xxxxx & Co. retained in connection with a Market Making Shelf Registration, as
selected by Xxxxxxx, Sachs & Co., (j) any fees charged by securities rating
services for rating the Securities or Exchange Securities, and (k) fees,
expenses and disbursements of any other persons, including special experts,
retained by the Company in connection with such registration (collectively, the
"Registration Expenses"). To the extent that any Registration Expenses are
incurred, assumed or paid by any holder of Registrable Securities, Xxxxxxx,
Xxxxx & Co. or any placement or sales agent therefor or underwriter thereof, the
Company shall reimburse such person for the full amount of the Registration
Expenses so incurred, assumed or paid promptly after receipt of a request
therefor. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered or Xxxxxxx, Sachs & Co., as applicable, shall pay
all agency fees and commissions and underwriting discounts and commissions
attributable to the sale of the applicable Registrable Securities, Securities or
Exchange Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, each Purchaser
and each of the holders from time to time of Registrable Securities that:
(a) Each registration statement covering Registrable Securities,
Securities or Exchange Securities and each prospectus (including any
preliminary or summary prospectus) contained therein or furnished
pursuant to Section 3(d) or Section 3(c) hereof and any further
amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission,
as the case may be, and, in the case of an underwritten offering of
Registrable Securities, Securities or Exchange Securities, at the time
of the closing under the underwriting agreement relating thereto, will
conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and will not contain an untrue
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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 at all times subsequent to the Effective Time when a
prospectus would be required to be delivered under the Securities Act,
other than (A) from (i) such time as a notice has been given to holders
of Registrable Securities or Xxxxxxx, Xxxxx & Co., as applicable,
pursuant to Section 3(d)(viii)(F) or Section 3(c)(iii)(F) hereof until
(ii) such time as the Company furnishes an amended or supplemented
prospectus pursuant to Section 3(e) or Section 3(c)(iv) hereof, or (B)
during any suspension of offering and sale pursuant to the second
paragraph of Section 2(c) hereof, each such registration statement, and
each prospectus (including any summary prospectus) contained therein or
furnished pursuant to Section 3(d) or Section 3(c) hereof, as then
amended or supplemented, will conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder and will
not 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 in the light of the circumstances then
existing; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by a
holder of Registrable Securities or Xxxxxxx, Sachs & Co., as applicable,
expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became effective
or are or were filed with the Commission, as the case may be, will
conform or conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such
documents will contain or contained an untrue statement of a material
fact or will omit or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by a
holder of Registrable Securities or Xxxxxxx, Xxxxx & Co., as applicable,
expressly for use therein.
(c) The compliance by the Company with all of the provisions of
this Exchange and Registration Rights Agreement and the consummation of
the transactions herein contemplated will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any subsidiary of the
Company is a party or by which the Company or any subsidiary of the
Company is bound or to which any of the property or assets of the
Company or any subsidiary of the Company is subject, nor create or give
rise to a right in any other party to or beneficiary of any such
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to take security in assets of the Company or any subsidiary
of the Company, nor will such action result in any violation of the
provisions of the certificate of incorporation, as amended, or the
by-laws of the Company or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company or any subsidiary of the Company or any of their properties; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the consummation by the Company of the transactions
contemplated by this Exchange and Registration Rights Agreement, except
in connection with the registration under the Securities Act of the
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Registrable Securities, Securities or Exchange Securities, qualification
of the Indenture under the Trust Indenture Act, filings of reports by
the Company under the Exchange Act and such consents, approvals,
authorizations, registrations or qualifications a may be required under
State securities or blue sky laws in connection with the offering and
distribution of Registrable Securities, Securities or Exchange
Securities.
(d) This Exchange and Registration Rights Agreement has been
duly authorized, executed and delivered by the Company.
6. Indemnification.
(a) Indemnification by the Company. The Company shall indemnify and
hold harmless each of the holders of Registrable Securities included in an
Exchange Offer Registration Statement, each of the Electing Holders of
Registrable Securities included in a Shelf Registration Statement and Xxxxxxx,
Sachs & Co. as holder of Securities or Exchange Securities included in a Market
Making Shelf Registration Statement and each person who participates as a
placement or sales agent or as an underwriter in any offering or sale of such
Registrable Securities, Securities or Exchange Securities against any losses,
claims, damages or liabilities, joint or several, to which Xxxxxxx, Xxxxx & Co.
or such holder, Electing Holder, agent or underwriter may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Exchange Offer Registration Statement or Secondary Offer Registration
Statement, as the case may be, under which Registrable Securities, Securities
or Exchange Securities were registered under the Securities Act, or any
preliminary, final or summary prospectus contained therein or furnished by the
Company to Xxxxxxx, Sachs & Co., any such holder, Electing Holder, agent or
underwriter, or any amendment 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 the Company shall, and it hereby agrees to, reimburse Xxxxxxx,
Xxxxx & Co., any such holder, such Electing Holder, such agent and such
underwriter for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
to any such person in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, or preliminary, final or summary prospectus, or
amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by such person expressly for use
therein;
(b) Indemnification by the Holders and any Agents and Underwriters in
Connection with any Shelf Registration. The Company may require, as a condition
to including any Registrable Securities in any Shelf Registration Statement
filed pursuant to Section 2(b) hereof and to entering into any underwriting
agreement with respect thereto, that the Company shall have received an
undertaking reasonably satisfactory to it from the Electing Holder of such
Registrable Securities and from each underwriter named in any such underwriting
agreement, severally and not jointly, to (i) indemnify and hold harmless the
Company, and all other holders of Registrable Securities, against any losses,
claims, damages or liabilities to which the Company or such other holders of
Registrable Securities may become subject, under the Securi-
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ties Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to any such Electing Holder, agent
or underwriter, or any amendment 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, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company by such Electing Holder or underwriter expressly for use
therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that no such Electing Holder shall be required to undertake liability
to any person under this Section 6(b) for any amounts in excess of the dollar
amount of the proceeds to be received by such Electing Holder from the sale of
such Electing Holder's Registrable Securities pursuant to such Shelf
Registration.
(c) Indemnification by Xxxxxxx, Sachs & Co. and any Agents and
Underwriters in Connection with the Market Making Shelf Registration. The
Company may require, as a condition to including any Securities or Exchange
Securities in the Market Making Shelf Registration Statement filed pursuant to
Section 2(c) hereof and to entering into any underwriting agreement with
respect thereto, that the Company shall have received an undertaking reasonably
satisfactory to it from each underwriter named in any such underwriting
agreement, severally and not jointly, to, and Xxxxxxx, Xxxxx & Co. shall, and
hereby agrees to, (i) indemnify and hold harmless the Company, against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Market Making Shelf Registration Statement, or any preliminary, final or
summary prospectus contained therein or furnished by the Company to Xxxxxxx,
Sachs & Co. or to any such agent or underwriter, or any amendment 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, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by Xxxxxxx, Xxxxx & Co. or such
underwriter expressly for use therein, and (ii) reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that, in the case of Securities held by Xxxxxxx,
Sachs & Co. at the time of the Exchange Offer, Xxxxxxx, Xxxxx & Co. shall not
be required to undertake liability to any person under this Section 6(c) for any
amounts in excess of the dollar amount of the proceeds to be received by
Xxxxxxx, Sachs & Co. from the sale of such Securities by Xxxxxxx, Xxxxx & Co.
pursuant to the Market Making Shelf Registration.
(d) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a), (b) or (c) above of written notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party pursuant to the
indemnification provisions of or contemplated by this Section 6, notify such
indemnifying
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party in writing of the commencement of such action; but the omission so to
notify the indemnifying party shall not relieve it from any liability which it
may have to any indemnified party other than under the indemnification
provisions of or contemplated by Section 6(a) or Section 6(b) or Section 6(c)
hereof. In case any such action shall be brought against any indemnified party
and it shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
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.
(e) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) or Section 6(c) are unavailable to
or insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the indemnifying party and the indemnified
party in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or by such indemnified party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties hereto
agree that it would not be just and equitable if contributions pursuant to this
Section 6(e) were determined by pro rata allocation (even if the holders or any
agents or underwriters or all to them were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 6(e). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 6(e), neither any
holder nor, in the case of a Market Making Shelf Registration relating to the
sale by Xxxxxxx, Sachs & Co. of Securities held by it at the time of the
Exchange Offer, Xxxxxxx, Xxxxx & Co. shall be required to contribute any amount
in excess of the amount by which the dollar amount of the proceeds received by
such holder from the sale of any Registrable Securities or Xxxxxxx, Sachs & Co.
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from the sale of any such Securities (after deducting any fees, discounts and
commissions applicable thereto) exceeds the amount of any damages which such
holder or Xxxxxxx, Xxxxx & Co., as applicable, have otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities, Securities or Exchange Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The holders', Xxxxxxx, Sachs &
Co.'s and any underwriters' obligations in this Section 6(e) to contribute shall
be several and not joint.
(f) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and partner of
Xxxxxxx, Xxxxx & Co. and each holder, agent and underwriter and each person, if
any, who controls Xxxxxxx, Sachs & Co. and any holder, agent or underwriter
within the meaning of the Securities Act; and the obligations of Xxxxxxx, Xxxxx
& Co., the holders and any agents or underwriters contemplated by this Section 6
shall be in addition to any liability which Xxxxxxx, Sachs & Co. or the
respective holder, agent or underwriter may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company
(including any person who, with his consent, is named in any registration
statement as about to become a director of the Company) and to each person, if
any, who controls the Company within the meaning of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities covered
by the Shelf Registration are to be sold pursuant to an underwritten offering,
the managing underwriter or underwriters thereof shall be designated by Electing
Holders holding at least a majority in aggregate principal amount of the
Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably acceptable
to the Company.
(b) Participation by Holders. Each holder of Registrable Securities hereby
agrees with each other such holder that no such holder may participate in any
underwritten offering hereunder unless such holder (i) 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 (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable Securities and Xxxxxxx,
Xxxxx & Co. that to the extent it shall be required to do so under the Exchange
Act, the Company shall timely file the reports required to be filed by it under
the Exchange Act or the Securities Act (including the reports under Sections 13
and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of
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Rule 144 adopted by the Commission under the Securities Act) and the rules and
regulations adopted by the Commission thereunder, and shall take such further
action as any holder of Registrable Securities or Xxxxxxx, Sachs & Co. may
reasonably request, all to the extent required from time to time to enable such
holder to sell Registrable Securities or Xxxxxxx, Xxxxx & Co. to sell Securities
or Exchange Securities without registration under the Securities Act within the
limitations of the exemption provided by Rule 144 under the Securities Act, as
such Rule may be amended from time to time, or any similar or successor rule or
regulation hereafter adopted by the Commission. Upon the request of any holder
of Registrable Securities or Xxxxxxx, Sachs & Co. in connection with that
holder's or Xxxxxxx, Xxxxx & Co.'s sale pursuant to Rule 144, the Company shall
deliver to such holder or Xxxxxxx, Sachs & Co. a written statement as to whether
it has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant, registration
rights with respect to Registrable Securities, Securities or Exchange Securities
or any other securities which would be inconsistent with the terms contained in
this Exchange and Registration Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company fails to perform any of its
obligations hereunder and that the Purchasers and the holders from time to time
of the Registrable Securities may be irreparably harmed by any such failure, and
accordingly agree that the Purchasers and such holders, in addition to any other
remedy to which they may be entitled at law or in equity, shall be entitled to
compel specific performance of the respective obligations of the Company under
this Exchange and Registration Rights Agreement in accordance with the terms and
conditions of this Exchange and Registration Rights Agreement, in any court of
the United States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company, to it
at 000 Xxxxx Xxxxx X., Xxxxx Xxxxx, Xxx 0000, Xxxxxx, Xxxx 00000, Attention:
General Counsel; if to Xxxxxxx, Sach & Co., to it at 00 Xxxxx Xxxxxx, Xxx Xxxx,
XX 00000, Attention: Xxxxx X. Xxxxxxxxx; and if to a holder, to the address of
such holder set forth in the security register or other records of the Company;
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this Exchange
and Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the parties hereto and the holders from
time to time of the Registrable Securities and the respective successors and
assigns of the parties hereto and such holders. In the event that any transferee
of any holder of Registrable Securities shall acquire Registrable Securities, in
any manner, whether by gift, bequest, purchase, operation of law or otherwise,
such transferee shall, without any further writing or action of any kind, be
deemed a beneficiary hereof for all purposes and such Registrable Securities
shall be held subject to all of the terms of, this Exchange and
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Registration Rights Agreement, and by taking and holding such Registrable
Securities such transferee shall be entitled to receive the benefits of, and be
conclusively deemed to have agreed to be bound by all of the applicable terms
and provisions of this Exchange and Registration Rights Agreement. If the
Company shall so request, any such successor, assign or transferee shall agree
in writing to acquire and hold the Registrable Securities subject to all of the
applicable terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made by
or on behalf of Xxxxxxx, Xxxxx & Co. or any holder of Registrable Securities,
any director, officer or partner of Xxxxxxx, Sachs & Co. or such holder, any
agent or underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery of and
payment for the Securities pursuant to the Purchase Agreement and the transfer
and registration of Securities by such holder or Xxxxxxx, Xxxxx & Co. and the
consummation of an Exchange Offer.
Anything herein to the contrary notwithstanding, the indemnity agreement
of the Company in Section 6(a) hereof, the representations and warranties in
Section 5(a) and Section 5(b) hereof and any representation or warranty as to
the accuracy of the Secondary Offer Registration Statement (or any preliminary,
final or summary prospectus contained therein) contained in any certificate
furnished by the Company pursuant to Section 3(d)(xvii) hereof, insofar as they
may constitute a basis for indemnification for liabilities (other than payment
by the Company of expenses incurred or paid in the successful defense of any
action, suit or proceeding) arising under the Securities Act, shall not extend
to the extent of any interest therein of a controlling person or partner of
Xxxxxxx, Sachs & Co. who is a director, officer or controlling person of the
Company when the Exchange Offer Registration Statement or the Secondary Offer
Registration Statement has become effective, except in each case to the extent
that an interest of such character shall have been determined by a court of
appropriate jurisdiction as not against public policy as expressed in the
Securities Act. Unless in the opinion of counsel for the Company the matter has
been settled by controlling precedent, the Company will, if a claim for such
indemnification is asserted, submit to a court of appropriate jurisdiction the
question whether such interest is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
(f) LAW GOVERNING THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and Registration Rights
Agreement and the other writings referred to herein (including the Indenture and
the form of Securities) or delivered pursuant hereto which form a part hereof
contain the entire understanding of the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement supersedes
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all prior agreements and understandings between the parties with respect to its
subject matter. This Exchange and Registration Rights Agreement may be amended
and the observance of any term of this Exchange and Registration Rights
Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively) only by a written instrument duly
executed by the Company and the holders of at least a majority in aggregate
principal amount of the Registrable Securities at the time outstanding and
Xxxxxxx, Xxxxx & Co., provided, however, that any such amendment or waiver
affecting solely provisions of this Exchange and Registration Rights Agreement
relating to the Market Making Registration may be effected by a written
instrument duly executed solely by the Company and Xxxxxxx, Sachs & Co. Each
holder of any Registrable Securities at the time or thereafter outstanding
shall be bound by any amendment or waiver effected pursuant to this Section
9(h), whether or not any notice, writing or marking indicating such amendment
or waiver appears on such Registrable Securities or is delivered to such
holder.
(i) Inspection. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and addresses of all the holders of
Registrable Securities and the address of Xxxxxxx, Xxxxx & Co. shall be made
available for inspection and copying on any business day by Xxxxxxx, Sachs & Co.
or any holder of Registrable Securities for proper purposes only (which shall
include any purpose related to the rights of the holders of Registrable
Securities under the Securities, the Indenture and this Agreement) at the
offices of the Company at the address thereof set forth in Section 9(c) above or
at the office of the Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
Agreed to and accepted as of the date referred to above.
INSILCO CORPORATION
By: /s/ Xxxxxxx X. Xxxx
---------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President and General Counsel
XXXXXXX, XXXXX & CO.
XXXXXXXX & COMPANY SECURITIES, INC.
CITICORP SECURITIES, INC.
By: /s/ Xxxxxxx, Xxxxx & Co.
---------------------------
(Xxxxxxx, Sachs & Co.)
On behalf of itself and each of the Purchasers
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