EXHIBIT 4.3
RESALE REGISTRATION RIGHTS AGREEMENT
AMONG
XXXXXXX INTERNATIONAL, INC.
BANC OF AMERICA SECURITIES LLC, AND
XXXXXXX XXXXX BARNEY INC.,
AS REPRESENTATIVES OF THE SEVERAL INITIAL PURCHASERS
DATED AS OF OCTOBER 10, 2001
RESALE REGISTRATION RIGHTS AGREEMENT, dated as of October 10, 2001,
among Xxxxxxx International, Inc., a Delaware corporation (together with any
successor entity, herein referred to as the "COMPANY"), Banc of America
Securities LLC and Xxxxxxx Xxxxx Barney Inc., as representatives of the
several initial purchasers (the "INITIAL PURCHASERS") under the Purchase
Agreement (as defined below).
Pursuant to the Purchase Agreement, dated as of October 4, 2001,
between the Company and Banc of America Securities LLC and Xxxxxxx Xxxxx
Xxxxxx Inc., as representatives of several initial purchasers (the "PURCHASE
AGREEMENT"), the Initial Purchasers have agreed to purchase from the Company
$225,000,000 ($250,000,000 if the Initial Purchasers exercise their
over-allotment option in full) in aggregate principal amount at maturity of
Zero Coupon Convertible Senior Debentures due 2021 (the "SECURITIES"). The
Securities will be convertible into fully paid, nonassessable shares of
common stock, par value $0.10 per share, of the Company (the "COMMON STOCK")
on the terms, and subject to the conditions, set forth in the Indenture (as
defined herein). To induce the Initial Purchasers to purchase the Securities,
the Company has agreed to provide the registration rights set forth in this
Agreement pursuant to Section 5(i) of the Purchase Agreement.
The parties hereby agree as follows:
. DEFINITIONS. As used in this Agreement, the following
capitalized terms shall have the following meanings:
"AGREEMENT": This Resale Registration Rights Agreement.
"BLUE SKY APPLICATION": As defined in Section 6(a) hereof.
"BUSINESS DAY": The definition of "Business Day" in the Indenture.
"COMMISSION": Securities and Exchange Commission.
"COMMON STOCK": As defined in the preamble hereto.
"COMPANY": As defined in the preamble hereto.
"EFFECTIVENESS PERIOD": As defined in Section 2(a)(iii) hereof.
"EFFECTIVENESS TARGET DATE": As defined in Section 2(a)(ii) hereof.
"EXCHANGE ACT": Securities Exchange Act of 1934, as amended.
"HOLDER": A Person who owns, beneficially or otherwise, Transfer
Restricted Securities.
"HOLDER QUESTIONNAIRE": As defined in Section 2(b) hereof.
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"INDEMNIFIED HOLDER": As defined in Section 6(a) hereof.
"INDENTURE": The Indenture, dated as of October 10, 2001 between the
Company and SunTrust Bank, as trustee (the "Trustee"), pursuant to which the
Securities are to be issued, as such Indenture is amended, modified or
supplemented from time to time in accordance with the terms thereof.
"INITIAL PURCHASERS": As defined in the preamble hereto.
"LIQUIDATED DAMAGES": As defined in Section 3(a) hereof.
"LIQUIDATED DAMAGES PAYMENT DATE": Each April 10 and October 10.
"MAJORITY OF HOLDERS": Holders holding over 50% of the aggregate
principal amount of Securities outstanding; provided that, for the purpose of
this definition, a holder of shares of Common Stock which constitute Transfer
Restricted Securities and issued upon conversion of the Securities shall be
deemed to hold an aggregate principal amount at maturity of Securities (in
addition to the principal amount at maturity of Securities held by such
holder) equal to the quotient of (x) the number of such shares of Common
Stock held by such holder and (y) the conversion rate in effect at the time
of such conversion as determined in accordance with the Indenture.
"NASD": National Association of Securities Dealers, Inc.
"PERSON": An individual, partnership, corporation, company,
unincorporated organization, trust, joint venture or a government or agency
or political subdivision thereof.
"PURCHASE AGREEMENT": As defined in the preamble hereto.
"PROSPECTUS": The prospectus included in a Shelf Registration
Statement, as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all
material incorporated by reference into such prospectus.
"QUESTIONNAIRE DEADLINE": As defined in Section 2(b) hereof.
"RECORD HOLDER": With respect to any Liquidated Damages Payment
Date, each Person who is a Holder on the 15th day preceding the relevant
Liquidated Damages Payment Date. In the case of a Holder of shares of Common
Stock issued upon conversion of the Securities, "Record Holder" shall mean
each Person who is a Holder of shares of Common Stock which constitute
Transfer Restricted Securities on the 15th day preceding the relevant
Liquidated Damages Payment Date.
"REGISTRATION DEFAULT": As defined in Section 3(a) hereof.
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"SALE NOTICE": As defined in Section 4(e) hereof.
"SECURITIES": As defined in the preamble hereto.
"SECURITIES ACT": Securities Act of 1933, as amended.
"SHELF FILING DEADLINE": As defined in Section 2(a)(i) hereof.
"SHELF REGISTRATION STATEMENT": As defined in Section 2(a)(i)
hereof.
"SUSPENSION NOTICE": As defined in Section 4(c) hereof.
"SUSPENSION PERIOD": As defined in Section 4(b)(i) hereof.
"TIA": Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder, in each case, as in effect on the
date the Indenture is qualified under the TIA.
"TRANSFER RESTRICTED SECURITIES": Each Security and each share of
Common Stock issued upon conversion of Securities until the earlier of:
the date on which such Security or such share of
Common Stock issued upon conversion has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement;
the date on which such Security or such share of
Common Stock issued upon conversion is transferred in compliance with
Rule 144 under the Securities Act or may be sold or transferred by a
person who is not an affiliate of the Company pursuant to Rule 144
under the Securities Act (or any other similar provision then in force)
without any volume or manner of sale restrictions thereunder; or
the date on which such Security or such share of
Common Stock issued upon conversion ceases to be outstanding (whether
as a result of redemption, repurchase and cancellation, conversion or
otherwise).
"UNDERWRITTEN REGISTRATION": A registration in which securities of
the Company are sold to an underwriter for reoffering to the public.
Unless the context otherwise requires, the singular includes the
plural, and words in the plural include the singular.
. SHELF REGISTRATION.
The Company shall:
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not later than 90 days after the date hereof (the
"SHELF FILING DEADLINE"), cause to be filed a registration statement
pursuant to Rule 415 under the Securities Act (the "SHELF REGISTRATION
STATEMENT"), which Shelf Registration Statement shall provide for
resales of all Transfer Restricted Securities held by Holders that have
provided the information required pursuant to the terms of Section 2(b)
hereof;
use its reasonable efforts to cause the Shelf
Registration Statement to be declared effective by the Commission not
later than 180 days after the date hereof (the "EFFECTIVENESS TARGET
Date"); and
use its reasonable efforts to keep the Shelf
Registration Statement continuously effective, supplemented and amended
as required by the provisions of Section 4(b) hereof to the extent
necessary to ensure that (A) it is available for resales by the Holders
of Transfer Restricted Securities entitled, subject to Section 2(b), to
the benefit of this Agreement and (B) conforms with the requirements of
this Agreement and the Securities Act and the rules and regulations of
the Commission promulgated thereunder as announced from time to time,
for a period (the "EFFECTIVENESS PERIOD") until the earliest of:
(1) two years following the last date of
original issuance of any of the Securities;
(2) the date when the Holders of Transfer Restricted
Securities are able to sell all such Transfer Restricted
Securities immediately without restriction pursuant to the
volume limitation provisions of Rule 144 under the Securities
Act; or
(3) the date when all of the Transfer Restricted
Securities of those Holders that complete and deliver in a
timely manner the Holder Questionnaire described below are
registered under the Shelf Registration Statement and disposed
of in accordance with the Shelf Registration Statement.
No Holder of Transfer Restricted Securities may include any
of its Transfer Restricted Securities in the Shelf Registration Statement
pursuant to this Agreement unless such Holder furnishes to the Company in
writing, prior to or on the 20th Business Day after a request therefor (or,
in the case of a Holder that is a transferee of Transfer Restricted
Securities, prior to or on the earlier of (i) the 20th Business Day after the
completion of such transfer to the transferee and (ii) 9:00 a.m., New York
time, on the second Business Day before the effectiveness of the Shelf
Registration Statement) (the "QUESTIONNAIRE DEADLINE")), such information as
the Company may reasonably request for use in connection with the Shelf
Registration Statement or Prospectus or preliminary Prospectus included
therein and in any application to be filed with or under state securities
laws (the form of which request is attached as Appendix A to the offering
memorandum
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dated October 4, 2001 regarding the sale of the Securities to the Initial
Purchasers and is referred to herein as the "HOLDER QUESTIONNAIRE"). In
connection with all such requests for information from Holders of Transfer
Restricted Securities, the Company shall notify such Holders of the
requirements set forth in the preceding sentence. The Company agrees and
undertakes that (i) it shall distribute a Holder Questionnaire no later than
20 Business Days prior to the effectiveness of the Shelf Registration
Statement to each Holder at the address set forth on the register of
Securities maintained by the Registrar of the Securities or the records of
the transfer agent of the Common Stock at such time, and (ii) upon the
request of any Holder prior to 9:00 a.m., New York time, on the second
Business Day before the effectiveness of the Shelf Registration Statement,
the Company shall distribute a Holder Questionnaire to such Holder at the
address set forth in such request. Holders that do not complete the Holder
Questionnaire and timely deliver it to the Company shall not be named as
selling securityholders in the Prospectus or preliminary Prospectus included
in the Shelf Registration Statement and therefore shall not be permitted to
sell any Transfer Restricted Securities pursuant to the Shelf Registration
Statement. No Holder of Transfer Restricted Securities shall be entitled to
Liquidated Damages pursuant to Section 3 hereof unless such Holder shall have
provided all such reasonably requested information prior to or on the
Questionnaire Deadline. Each Holder as to which the Shelf Registration
Statement is being effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make information previously
furnished to the Company by such Holder not materially misleading.
. LIQUIDATED DAMAGES.
If:
the Shelf Registration Statement is not filed with
the Commission prior to or on the Shelf Filing Deadline;
the Shelf Registration Statement has not been
declared effective by the Commission prior to or on the Effectiveness
Target Date;
except as provided in Section 4(b)(i) hereof, the
Shelf Registration Statement is filed and declared effective but,
during the Effectiveness Period, shall thereafter cease to be effective
or fail to be usable for its intended purpose without being succeeded
within five Business Days by a post-effective amendment to the Shelf
Registration Statement, a supplement to the Prospectus or a report
filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act that cures such failure and, in the case of a
post-effective amendment, is itself immediately declared effective; or
(A) prior to or on the 45th or 60th day, as the case
may be, of any Suspension Period, such suspension has not been
terminated or (B) Suspension Periods exceed an aggregate of 90 days in
any 360 day period,
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(each such event referred to in foregoing clauses (i) through (iv), a
"REGISTRATION DEFAULT"), the Company hereby agrees to pay interest
("LIQUIDATED DAMAGES") with respect to the Transfer Restricted Securities
from and including the day following the Registration Default to but
excluding the earlier of (1) the day on which the Registration Default has
been cured and (2) the date the Shelf Registration Statement is no longer
required to be kept effective, accruing at a rate:
in respect of the Securities, to each holder
of Securities, (x) with respect to the first 90-day period
during which a Registration Default shall have occurred and
be continuing, equal to 0.25% per annum of the aggregate
issue price plus accrued original issue discount of the
Securities, and (y) with respect to the period commencing on
the 91st day following the day the Registration Default shall
have occurred and be continuing, equal to 0.50% per annum of
the aggregate issue price plus accrued original issue
discount of the Securities; PROVIDED that in no event shall
Liquidated Damages accrue at a rate per year exceeding 0.50%
of the aggregate issue price plus accrued original issue
discount of the Securities; and
in respect of any shares of Common Stock, to
each holder of shares of Common Stock issued upon conversion
of Securities, (x) with respect to the first 90-day period in
which a Registration Default shall have occurred and be
continuing, equal to 0.25% per annum of the aggregate issue
price plus accrued original issue discount to the date of
calculation, of each Security converted, and (y) with respect
to the period commencing the 91st day following the day the
Registration Default shall have occurred and be continuing,
equal to 0.50% per annum of the aggregate issue price plus
accrued original issue discount to the date of calculation,
of each Security converted; PROVIDED that in no event shall
Liquidated Damages accrue at a rate per year exceeding 0.50%
of the aggregate issue price plus accrued original issue
discount to the date of calculation, of the converted
Securities.
All accrued Liquidated Damages shall be paid in arrears to
Record Holders by the Company on each Liquidated Damages Payment Date. Upon
the cure of all Registration Defaults relating to any particular Security or
share of Common Stock, the accrual of Liquidated Damages with respect to such
Security or share of Common Stock will cease.
All obligations of the Company set forth in this Section 3 that are
outstanding with respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such Transfer Restricted
Security shall have been satisfied in full.
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The Liquidated Damages set forth above shall be the exclusive
monetary remedy available to the Holders of Transfer Restricted Securities
for each Registration Default.
. REGISTRATION PROCEDURES.
In connection with the Shelf Registration Statement, the
Company shall comply with all the provisions of Section 4(b) hereof and shall
use its reasonable efforts to effect such registration to permit the sale of
the Transfer Restricted Securities, and pursuant thereto, shall as
expeditiously as possible prepare and file with the Commission a Shelf
Registration Statement relating to the registration on any appropriate form
under the Securities Act.
In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities, the Company shall:
Subject to any notice by the Company in accordance
with this Section 4(b) of the existence of any fact or event of the
kind described in Section 4(b)(iii)(D), use its reasonable efforts to
keep the Shelf Registration Statement continuously effective during the
Effectiveness Period; upon the occurrence of any event that would cause
the Shelf Registration Statement or the Prospectus contained therein
(A) to contain a material misstatement or omission or (B) not to be
effective and usable for resale of Transfer Restricted Securities
during the Effectiveness Period, the Company shall file promptly an
appropriate amendment to the Shelf Registration Statement, a supplement
to the Prospectus or a report filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in the case of
clause (A), correcting any such misstatement or omission, and, in the
case of either clause (A) or (B), use its reasonable efforts to cause
such amendment to be declared effective and the Shelf Registration
Statement and the related Prospectus to become usable for their
intended purposes as soon as practicable thereafter. Notwithstanding
the foregoing, the Company may suspend the effectiveness of the Shelf
Registration Statement by written notice to the Holders for a period
not to exceed an aggregate of 45 days in any 90-day period (each such
period, a "SUSPENSION PERIOD") if:
(x) an event occurs and is continuing as a
result of which the Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or any
document incorporated by reference therein would, in the
Company's judgment, contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; and
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(y) the Company determines in good faith that
the disclosure of such event at such time would be seriously
detrimental to the Company and its subsidiaries;
PROVIDED that, in the event the disclosure relates to a previously
undisclosed proposed or pending material business transaction, the
disclosure of which the Company determines in good faith would be
reasonably likely to impede the Company's ability to consummate such
transaction, the Company may extend a Suspension Period from 45 days to
60 days; provided, however, that Suspension Periods shall not exceed an
aggregate of 90 days in any 360-day period. The Company shall not be
required to specify in the written notice to the Holders the nature of
the event giving rise to the Suspension Period.
Prepare and file with the Commission such amendments
and post-effective amendments to the Shelf Registration Statement as
may be necessary to keep the Shelf Registration Statement effective
during the Effectiveness Period; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act,
and to comply fully with the applicable provisions of Rules 424 and
430A under the Securities Act in a timely manner; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by the Shelf Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in the Shelf Registration
Statement or supplement to the Prospectus.
Advise the selling Holders promptly and, if requested
by such selling Holders, to confirm such advice in writing, except as
provided in clause (D) below:
when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and,
with respect to the Shelf Registration Statement or any
post-effective amendment thereto, when the same has become
effective,
of any request by the Commission for
amendments to the Shelf Registration Statement or amendments
or supplements to the Prospectus or for additional
information relating thereto,
of the issuance by the Commission of any
stop order suspending the effectiveness of the Shelf
Registration Statement under the Securities Act or of the
suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for
offering or sale in any jurisdiction, or the initiation of
any proceeding for any of the preceding purposes, or
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of the existence of any fact or the
happening of any event, during the Effectiveness Period, that
makes any statement of a material fact made in the Shelf
Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions
to or changes in the Shelf Registration Statement or the
Prospectus in order to make the statements therein not
misleading.
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement, or any state
securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of
the Transfer Restricted Securities under state securities or Blue Sky
laws, the Company shall use its reasonable efforts to obtain the
withdrawal or lifting of such order at the earliest possible time and
will provide to each Holder who is named in the Shelf Registration
Statement prompt notice of the withdrawal of any such order.
Make available at reasonable times for inspection by
one or more representatives of the selling Holders, designated in
writing by a Majority of Holders whose Transfer Restricted Securities
are included in the Shelf Registration Statement, and any attorney or
accountant retained by such selling Holders, all financial and other
records, pertinent corporate documents and properties of the Company as
shall be reasonably necessary to enable them to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act,
and cause the Company's officers, directors, managers and employees to
supply all information reasonably requested by any such representative
or representatives of the selling Holders, attorney or accountant in
connection therewith; PROVIDED, HOWEVER, that the Company shall have no
obligation to deliver information to any selling Holder or
representative pursuant to this Section 4(b)(iv) unless such selling
Holder or representative shall have executed and delivered a
confidentiality agreement in a form acceptable to the Company relating
to such information.
If requested by any selling Holders, promptly
incorporate in the Shelf Registration Statement or Prospectus, pursuant
to a supplement or post-effective amendment if necessary, such
information as such selling Holders may reasonably request to have
included therein, including, without limitation, information relating
to the "PLAN OF DISTRIBUTION" of the Transfer Restricted Securities.
Furnish to each selling Holder upon their request,
without charge, at least one copy of the Shelf Registration Statement,
as first filed with the Commission, and of each amendment thereto (and
any documents
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incorporated by reference therein or exhibits thereto (or exhibits
incorporated in such exhibits by reference) as such Person may
request).
Deliver to each selling Holder, without charge, as
many copies of the Prospectus (including each preliminary Prospectus)
and any amendment or supplement thereto as such Persons reasonably may
request; subject to any notice by the Company in accordance with this
Section 4(b) of the existence of any fact or event of the kind
described in Section 4(b)(iii)(D), the Company hereby consents to the
use of the Prospectus and any amendment or supplement thereto by each
of the selling Holders in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto.
Before any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions in the United States as the selling Holders may
reasonably request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf Registration
Statement; PROVIDED, however, that the Company shall not be required
(A) to register or qualify as a foreign corporation or a dealer of
securities where it is not now so qualified or to take any action that
would subject it to the service of process in any jurisdiction where it
is not now so subject or (B) to subject itself to taxation in any such
jurisdiction if they are not now so subject.
Cooperate with the selling Holders to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends (unless required by applicable securities laws); and enable
such Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders may request at least two
Business Days before any sale of Transfer Restricted Securities.
Use its reasonable efforts to cause the Transfer
Restricted Securities covered by the Shelf Registration Statement to be
registered with or approved by such other U.S. governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof
to consummate the disposition of such Transfer Restricted Securities.
Subject to Section 4(b)(i) hereof, if any fact or
event contemplated by Section 4(b)(iii)(D) hereof shall exist or have
occurred, use its reasonable efforts to prepare a supplement or
post-effective amendment to the Shelf Registration Statement or related
Prospectus or any document incorporated therein by reference or file
any other required
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document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they are made, not
misleading.
Provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Shelf Registration
Statement and provide the Trustee under the Indenture with certificates
for the Securities that are in a form eligible for deposit with The
Depository Trust Company.
Cooperate and assist in any filings required to be
made with the NASD and in the performance of any due diligence
investigation by any underwriter that is required to be retained in
accordance with the rules and regulations of the NASD.
Otherwise use its reasonable efforts to comply with
all applicable rules and regulations of the Commission and all
reporting requirements under the rules and regulations of the Exchange
Act.
Cause the Indenture to be qualified under the TIA not
later than the effective date of the Shelf Registration Statement
required by this Agreement, and, in connection therewith, cooperate
with the Trustee and the holders of Securities to effect such changes
to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and execute and use
its reasonable efforts to cause the Trustee thereunder to execute all
documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner.
Cause all Common Stock covered by the Shelf
Registration Statement to be listed or quoted, as the case may be, on
each securities exchange or automated quotation system on which Common
Stock is then listed or quoted.
Provide to each Holder upon written request each
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act after the effective date
of the Shelf Registration Statement, unless such document is available
through the Commission's XXXXX system.
Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice (a "SUSPENSION NOTICE") from the
Company of the existence of any fact of the kind described in Section
4(b)(iii)(D)
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hereof, such Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the Shelf Registration Statement until:
such Holder has received copies of the supplemented
or amended Prospectus contemplated by Section 4(b)(xi) hereof; or
such Holder is advised in writing by the Company that
the use of the Prospectus may be resumed, and has received copies of
any additional or supplemental filings that are incorporated by
reference in the Prospectus.
If so directed by the Company, each Holder will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice of
suspension.
Each Holder who intends to be named as a selling Holder in
the Shelf Registration Statement shall furnish to the Company in writing,
within 20 Business Days after a request therefor as set forth in the Holder
Questionnaire, such information regarding such Holder and the proposed
distribution by such Holder of its Transfer Restricted Securities as the
Company may reasonably request for use in connection with the Shelf
Registration Statement or Prospectus or preliminary Prospectus included
therein. Holders that do not complete the Holder Questionnaire and deliver it
to the Company shall not be named as selling securityholders in the
Prospectus or preliminary Prospectus included in the Shelf Registration
Statement and therefore shall not be permitted to sell any Transfer
Restricted Securities pursuant to the Shelf Registration Statement; PROVIDED,
HOWEVER, that notwithstanding the foregoing, transferees of all or a portion
of a Holder's Transfer Restricted Securities who furnish to the Company a
completed Holder Questionnaire on or prior to the earlier of (i) the 20th
business day after the completion of such transfer to the transferee and (ii)
9:00 a.m., New York time, on the second Business Day before the effectiveness
of the Shelf Registration Statement shall be named as selling securityholders
in the Prospectus or preliminary Prospectus included in the Shelf
Registration Statement. Each Holder who intends to be named as a selling
Holder in the Shelf Registration Statement shall promptly furnish to the
Company in writing such other information as the Company may from time to
time reasonably request in writing.
Upon the effectiveness of the Shelf Registration Statement,
each Holder shall notify the Company at least three Business Days prior to
any intended distribution of Transfer Restricted Securities pursuant to the
Shelf Registration Statement (a "SALE NOTICE"), which notice shall be
effective for five Business Days. Each Holder of Transfer Restricted
Securities, by accepting the same, agrees to hold any communication by the
Company in response to a Sale Notice in confidence. Upon receipt of a Sale
Notice, the Company shall inform each Holder in writing of the existence of a
Suspension Period or otherwise, of the kind of event described in Section
4(b)(iii)(D).
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. REGISTRATION EXPENSES.
All expenses incident to the Company's performance of or compliance
with this Agreement shall be borne by the Company regardless of whether a
Shelf Registration Statement becomes effective, including, without limitation:
all registration and filing fees and expenses
(including filings made with the NASD);
all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws;
all expenses of printing (including printing of
Prospectuses and certificates for the Common Stock to be issued upon
conversion of the Securities) and the Company's expenses for messenger
and delivery services and telephone;
all fees and disbursements of counsel to the Company;
all application and filing fees in connection with
listing (or authorizing for quotation) the Common Stock on a national
securities exchange or automated quotation system pursuant to the
requirements hereof; and
all fees and disbursements of independent certified
public accountants of the Company.
The Company shall bear its internal expenses (including, without
limitation, all salaries and expenses of their officers and employees
performing legal, accounting or other duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company.
. INDEMNIFICATION AND CONTRIBUTION.
The Company shall indemnify and hold harmless each Holder,
such Holder's officers and employees and each person, if any, who controls
such Holder within the meaning of the Securities Act (each, an "INDEMNIFIED
HOLDER"), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to resales of the Transfer
Restricted Securities), to which such Indemnified Holder may become subject,
insofar as any such loss, claim, damage, liability or action arises out of,
or is based upon:
any untrue statement or alleged untrue statement of a
material fact contained in (A) the Shelf Registration Statement or
Prospectus or any amendment or supplement thereto or (B) any blue sky
application or other document or any amendment or supplement thereto
prepared or executed by the Company (or based upon written information
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furnished by or on behalf of the Company expressly for use in such blue
sky application or other document or amendment on supplement) filed in
any jurisdiction specifically for the purpose of qualifying any or all
of the Transfer Restricted Securities under the securities law of any
state or other jurisdiction (such application or document being
hereinafter called a "BLUE SKY APPLICATION"); or
the omission or alleged omission to state therein any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading,
and shall reimburse each Indemnified Holder promptly upon demand for any
legal or other expenses reasonably incurred by such Indemnified Holder in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
PROVIDED, HOWEVER, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in the Shelf Registration Statement or
Prospectus or amendment or supplement thereto or Blue Sky Application in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Holder (or its related Indemnified Holder)
specifically for use therein; PROVIDED, FURTHER, that the Company shall not
be liable to any Indemnified Holder under the indemnity agreement in this
subsection (a) with respect to any preliminary Prospectus to the extent that
any such loss, claim, damage or liability of such Indemnified Holder results
from the fact that such Indemnified Holder sold Transfer Restricted
Securities to a Person as to whom it shall be established that there was not
sent or given, at or prior to the written confirmation of such sale, a copy
of the final Prospectus in any case where such delivery is required by the
Securities Act if the Company had previously furnished copies thereof in
sufficient quantities to such Indemnified Holder and the loss, claim, damage
or liability of such Indemnified Holder results from an untrue statement or
omission of a material fact contained in the preliminary Prospectus which was
(i) identified to such Identified Holder at or prior to the earlier of the
filing with the Commission or the furnishing to such Indemnified Holder of
the corrected Prospectus and (ii) corrected in the final Prospectus. The
foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Indemnified Holder.
Each Holder, severally and not jointly, shall indemnify and
hold harmless the Company, its officers and employees and each person, if
any, who controls the Company within the meaning of the Securities Act, from
and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company or any such officer, employee
or controlling person may become subject, insofar as any such loss, claim,
damage or liability or action arises out of, or is based upon:
15
any untrue statement or alleged untrue statement of
any material fact contained in the Shelf Registration Statement or
Prospectus or any amendment or supplement thereto or any Blue Sky
Application; or
the omission or the alleged omission to state therein
any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading,
but in each case 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 or on
behalf of such Holder (or its related Indemnified Holder) specifically for
use therein, and shall reimburse the Company and any such officer, employee
or controlling person promptly upon demand for any legal or other expenses
reasonably incurred by the Company or any such officer, employee or
controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to
any liability which any Holder may otherwise have to the Company and any such
officer, employee or controlling person.
Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 6 except to the extent it
has been materially prejudiced by such failure and, PROVIDED, FURTHER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 6. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 6 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; PROVIDED, HOWEVER, that the Holders shall
have the right to employ a single counsel to represent jointly the Holders
and their officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be
sought by the Holders against the Company under this Section 6 if the Holders
seeking indemnification shall have been advised by legal counsel that there
may be one or more legal defenses available to such Holders and their
respective officers,
16
employees and controlling persons that are different from or additional to
those available to the Company, and in that event, the fees and expenses of
such separate counsel shall be paid by the Company. No indemnifying party
shall:
without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld) settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action), unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or
be liable for any settlement of any such action
effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if
there be a final judgment for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss of liability by reason of
such settlement or judgment.
If the indemnification provided for in this Section 6 shall
for any reason be unavailable or insufficient to hold harmless an indemnified
party under Section 6(a) or 6(b) in respect of any loss, claim, damage or
liability (or action in respect thereof) referred to therein, each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability (or action in respect
thereof):
in such proportion as is appropriate to reflect the
relative benefits received by the Company from the offering and sale of
the Transfer Restricted Securities on the one hand and a Holder with
respect to the sale by such Holder of the Transfer Restricted
Securities on the other, or
if the allocation provided by clause (6)(d)(i) is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 6(d)(i)
but also the relative fault of the Company on the one hand and the
Holders on the other in connection with the statements or omissions or
alleged statements or alleged omissions that resulted in such loss,
claim, damage or liability (or action in respect thereof), as well as
any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and a Holder on
the other with respect to such offering and such sale shall be deemed to be
in the same proportion as the total net proceeds from the offering of the
Securities
17
purchased under the Purchase Agreement (before deducting expenses) received
by the Company, on the one hand, bear to the total proceeds received by such
Holder with respect to its sale of Transfer Restricted Securities on the
other. The relative fault of the parties shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Holders on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each Holder agree that it would not be just and equitable if the amount of
contribution pursuant to this Section 6(d) were determined by PRO RATA
allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the first sentence of
this paragraph (d). The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 6 shall be deemed to include, for purposes
of this Section 6, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending or preparing
to defend any such action or claim. Notwithstanding the provisions of this
Section 6, no Holder shall be required to contribute any amount in excess of
the amount by which the total price at which the Transfer Restricted
Securities purchased by it were resold exceeds the amount of any damages
which such Holder has otherwise been required to pay by reason of any 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' obligations to
contribute as provided in this Section 6(d) are several and not joint.
. RULE 144A. In the event the Company is not subject to
Section 13 or 15(d) of the Exchange Act, the Company hereby agrees with each
Holder, for so long as any Transfer Restricted Securities remain outstanding,
to make available to any Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale thereof and any prospective purchaser
of such Transfer Restricted Securities from such Holder or beneficial owner,
the information required by Rule 144A(d)(4) under the Securities Act in order
to permit resales of such Transfer Restricted Securities pursuant to Rule
144A.
. NO PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No
Holder may participate in any Underwritten Registration hereunder.
. MISCELLANEOUS.
REMEDIES. The Company acknowledges and agrees that any
failure by the Company to comply with its obligations under Section 2 hereof
may result in material irreparable injury to the Initial Purchasers or the
Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely, and that, in the
event of any such failure, the Initial Purchasers or any Holder may obtain
such relief as may be required to
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specifically enforce the Company's obligations under Section 2 hereof. The
Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
ACTIONS AFFECTING TRANSFER RESTRICTED SECURITIES. The
Company shall not, directly or indirectly, take any action with respect to
the Transfer Restricted Securities as a class that would adversely affect the
ability of the Holders of Transfer Restricted Securities to include such
Transfer Restricted Securities in a registration undertaken pursuant to this
Agreement.
NO INCONSISTENT AGREEMENTS. The Company will not, on or
after the date of this Agreement, enter into any agreement with respect to
its securities that is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof. In
addition, the Company shall not grant to any of its securityholders (other
than the Holders of Transfer Restricted Securities in such capacity) the
right to include any of its securities in the Shelf Registration Statement
provided for in this Agreement other than the Transfer Restricted Securities.
The Company has not previously entered into any agreement (which has not
expired or been terminated) granting any registration rights with respect to
its securities to any Person which rights conflict with the provisions hereof.
AMENDMENTS AND WAIVERS. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Company has obtained the
written consent of a Majority of Holders.
NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, first class
mail (registered or certified, return receipt requested), telex, facsimile
transmission, or air courier guaranteeing overnight delivery:
if to a Holder, at the address set forth on the
records of the registrar under the Indenture or the transfer agent
of the Common Stock, as the case may be; and
if to the Company:
Brinker International, Inc.
0000 XXX Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
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With a copy to:
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Xx.
Tel: (000) 000-0000
Fax: (000) 000-0000
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if transmitted by
facsimile; and on the next Business Day, if timely delivered to an air
courier guaranteeing overnight delivery.
SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that (i) this Agreement shall not inure to the benefit of or be
binding upon a successor or assign of a Holder unless and to the extent such
successor or assign acquired Transfer Restricted Securities from such Holder,
and (ii) nothing contained herein shall be deemed to permit any assignment,
transfer or other disposition of Transfer Restricted Securities in violation
of the terms of the Purchase Agreement or the Indenture. If any transferee of
any Holder shall acquire Transfer Restricted Securities, in any manner,
whether by operation of law or otherwise, such Transfer Restricted Securities
shall be held subject to all of the terms of this Agreement, and by taking
and holding such Transfer Restricted Securities, such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement.
COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
SECURITIES HELD BY THE COMPANY OR THEIR AFFILIATES.
Whenever the consent or approval of Holders of a specified percentage of
Transfer Restricted Securities is required hereunder, Transfer Restricted
Securities held by the Company or its "affiliates" (as such term is defined
in Rule 405 under the Securities Act) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
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GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability
of any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
ENTIRE AGREEMENT. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred
to herein with respect to the registration rights granted by the Company with
respect to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
XXXXXXX INTERNATIONAL, INC.
By
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NAME:
TITLE:
BANC OF AMERICA SECURITIES LLC
XXXXXXX XXXXX BARNEY INC.
Acting severally on behalf of
themselves and the several Initial
Purchasers
By BANC OF AMERICA SECURITIES LLC
By
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AUTHORIZED REPRESENTATIVE
