EXHIBIT 10.56
XXXX.XXX, INC.
7.00% Convertible Subordinated Notes due 2005
REGISTRATION AGREEMENT
New York, New York
January 26, 2000
Xxxxxxx Xxxxx Xxxxxx Inc.
PaineWebber Incorporated
XX Xxxxx Securities Corporation
Sands Brothers & Co., Ltd.
As Representatives of the Initial Purchasers
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxx.xxx, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell (such issuance and sale, the "Initial Placement") to the several
parties named in Schedule I to the Purchase Agreement (the "Initial Purchasers")
for whom you (the "Representatives") are acting as representatives, upon the
terms set forth in a purchase agreement dated January 20, 2000 (the "Purchase
Agreement"), $100,000,000 aggregate principal amount (plus up to an additional
$25,000,000 aggregate principal amount to cover over-allotments, if any) of its
7.00% Convertible Subordinated Notes due 2005 (the "Securities"). The Securities
will be convertible into shares of Class A common stock, par value $.01 per
share, of the Company at the conversion price set forth in the Offering
Memorandum (as defined herein), as the same may be adjusted from time to time
pursuant to the Indenture referred to below. As an inducement to you to enter
into the Purchase Agreement and in satisfaction of a condition to your
obligations thereunder, the Company agrees with you, (i) for your benefit and
(ii) for the benefit of the holders from time to time of the Securities and the
Class A common stock issuable upon conversion of the Securities (including you),
as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have the respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized terms shall have the following
meanings:
"ACT" means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
"AFFILIATE" of any specified person means any other person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), as used with respect to any
person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of
1
such person, whether through the ownership of voting securities or by agreement
or otherwise.
"BUSINESS DAY" has the meaning set forth in the Indenture.
"CLOSING DATE" means January 26, 2000.
"CLASS A COMMON STOCK" means the Class A common stock, par value $.01
per share, of the Company, as it exists on the date of this Agreement and any
other shares of capital stock or other securities of the Company into which such
Class A common stock may be reclassified or changed, together with any and all
other securities which may from time to time be issuable upon conversion of
Securities.
"DAMAGES PAYMENT DATE" means, with respect to the Securities or the
Class A common stock issuable upon conversion thereof, as applicable, each
Interest Payment Date; and in the event that any Security, or portion thereof,
is called for redemption or surrendered for purchase by the Company and not
withdrawn pursuant to a Designated Event Offer (as defined in the Indenture),
the relevant redemption date or Designated Event Payment Date (as defined in the
Indenture), as the case may be, shall also be a Damages Payment Date with
respect to such Security, or portion thereof, unless the Indenture provides that
accrued and unpaid interest on the Security (or portion thereof) to be redeemed
or repurchased, as the case may be, is to be paid to the person who was the
Holder thereof on a record date prior to such redemption date or Designated
Event Payment Date, as the case may be, in which case the Damages Payment Date
shall be the date on which interest is payable to such Record Holder.
"DEFAULT RATE" has the meaning set forth in the Indenture.
"DTC" has the meaning set forth in Section 3(k) hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"FINAL MATURITY DATE" means February 1, 2005.
"HOLDER" means a person who is a holder or beneficial owner (including
the Initial Purchasers) of any Securities or shares of Class A common stock
issued upon conversion of Securities; provided that, unless otherwise expressly
stated herein, only registered holders of Securities or Class A common stock
issued on conversion thereof shall be counted for purposes of calculating any
proportion of holders entitled to take any action or give notice pursuant to
this Agreement.
"INDENTURE" means the Indenture relating to the Securities dated as of
January 26, 2000, between the Company and American Stock Transfer & Trust
Company, as trustee, as the same may be amended from time to time in accordance
with the terms thereof.
"INITIAL PLACEMENT" has the meaning set forth in the preamble hereto.
"INITIAL PURCHASERS" has the meaning set forth in the preamble hereto.
"INTEREST PAYMENT DATE" shall mean each February 1 and August 1.
"LIQUIDATED DAMAGES" has the meaning set forth in Section 2(e) hereof.
2
"MAJORITY HOLDERS" means the Holders of a majority of the then
outstanding aggregate principal amount of Securities registered under a Shelf
Registration Statement; PROVIDED that Holders of Class A common stock issued
upon conversion of Securities shall be deemed to be Holders of the aggregate
principal amount of Securities from which such Class A common stock was
converted; and provided, further, that Securities or Class A common stock which
have been sold or otherwise transferred pursuant to the Shelf Registration
Statement shall not be included in the calculation of Majority Holders.
"MAJORITY UNDERWRITING HOLDERS" means, with respect to any Underwritten
Offering, the Holders of a majority of the then outstanding aggregate principal
amount of Securities registered under any Shelf Registration Statement whose
Securities are or are to be included in such Underwritten Offering; provided
that Holders of Class A common stock issued upon conversion of Securities should
be deemed to be Holders of the aggregate principal amount of Securities from
which such Class A common stock was converted.
"MANAGING UNDERWRITERS" means the Underwriter or Underwriters that
shall administer an Underwritten Offering, as selected by the Majority Holders.
"NASD" has the meaning set forth in Section 3(i) hereof.
"NOTICE AND QUESTIONNAIRE" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
"OFFERING MEMORANDUM" means the Final Memorandum as defined in the
Purchase Agreement.
"PERSON" and "PERSON" have the meaning set forth in the Indenture.
"PROSPECTUS" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or Class A common stock issuable upon
conversion thereof covered by such Shelf Registration Statement, and all
amendments and supplements to such prospectus, including all documents
incorporated or deemed to be incorporated by reference in such prospectus.
"PURCHASE AGREEMENT" has the meaning set forth in the preamble hereto.
"RECORD HOLDER" means (i) with respect to any Damages Payment Date
which occurs on an Interest Payment Date, each person who is registered on the
books of the registrar as the holder of Securities at the close of business on
the record date with respect to such Interest Payment Date and (ii) with respect
to any Damages Payment Date relating to the Class A common stock issued upon
conversion thereof, each person who is a holder of record of such Class A common
stock fifteen days prior to the Damages Payment Date.
"REGISTRATION DEFAULT" has the meaning set forth in Section 2(e)
hereof.
"REPRESENTATIVES" has the meaning set forth in the preamble hereto.
"RULE 144" means Rule 144 (or any successor provision) under the Act.
3
"SEC" means the Securities and Exchange Commission.
"SECURITIES" has the meaning set forth in the preamble hereto.
"SHELF REGISTRATION" means a registration effected pursuant to Section
2 hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in Section 2(c)
hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement
of the Company pursuant to the provisions of Section 2 hereof which covers all
of the Securities and the Class A common stock issuable upon conversion thereof,
as applicable, on Form S-3 or on another appropriate form for an offering to be
made on a delayed or continuous basis pursuant to Rule 415 under the Act, or any
similar rule that may be adopted by the SEC, and all amendments and supplements
to such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
documents incorporated or deemed to be incorporated by reference therein.
"SUSPENSION PERIOD" has the meaning set forth in Section 2(d) hereof.
"TRANSFER RESTRICTED SECURITIES" means each Security and each share of
Class A common stock issued upon conversion thereof until the date on which such
Security or share of Class A common stock, as the case may be, (i) has been
transferred pursuant to the Shelf Registration Statement or another registration
statement covering such Security or share of Class A common stock which has been
filed with the SEC pursuant to the Act, in either case after such registration
statement has become effective and while such registration statement is
effective under the Act, (ii) has been transferred pursuant to Rule 144 under
the Act (or any similar provision then in force), or (iii) may be sold or
transferred pursuant to Rule 144(k) under the Act (or any successor provision
then in force).
"TRUSTEE" means the trustee with respect to the Securities under the
Indenture.
"UNDERWRITER" means any underwriter of Securities or Class A common
stock issuable upon conversion thereof in connection with an offering thereof
under a Shelf Registration Statement.
"UNDERWRITTEN OFFERING" means an offering in which the Securities or
Class A common stock issued upon conversion thereof are sold to an Underwriter
or with the assistance of an Underwriter for reoffering to the public.
All references in this Agreement to financial statements and schedules
and other information which is "contained", "included", or "stated" in the Shelf
Registration Statement, any preliminary Prospectus or Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
or deemed to be incorporated by reference in such Shelf Registration Statement,
preliminary Prospectus or Prospectus, as the case may be; and all references in
this Agreement to amendments or supplements to the Shelf Registration Statement,
any preliminary Prospectus or Prospectus shall be deemed to mean and include the
filing of any document under the Exchange Act, after the date of such Shelf
Registration Statement, preliminary Prospectus or Prospectus, as the case may
be, which is incorporated or deemed to be incorporated by reference therein.
4
2. SHELF REGISTRATION STATEMENT.
(a) The Company shall prepare and, not later than 180 days following
the Closing Date, shall file with the SEC a Shelf Registration Statement with
respect to resales of the Securities and the Class A common stock issuable upon
conversion thereof by the Holders from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement and thereafter shall use its best efforts to cause such
Shelf Registration Statement to be declared effective under the Act within 240
days after the Closing Date; provided that if any Securities are issued upon
exercise of the over-allotment option granted to the Initial Purchasers in the
Purchase Agreement and the date on which such Securities are issued occurs after
the Closing Date, the Company will take such steps, prior to the effective date
of the Shelf Registration Statement, to ensure that such Securities and Class A
common stock issuable upon conversion thereof are included in the Shelf
Registration Statement on the same terms as the Securities issued on the Closing
Date. Subject to Section 2(d), the Company shall supplement or amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company for the Shelf
Registration Statement, if required by the Act, the Exchange Act or the SEC.
(b) (1) Not less than 30 calendar days prior to the effectiveness of
the Shelf Registration Statement, the Company shall mail the Notice and
Questionnaire to the Holders of Securities and Class A common stock issued upon
conversion thereof. No Holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement, and no Holder shall be
entitled to use the Prospectus forming a part thereof for resales of Securities
or Class A common stock issued upon conversion thereof at any time, unless such
Holder has returned a completed and signed Notice and Questionnaire to the
Company by the deadline for responses set forth therein; PROVIDED, HOWEVER, that
Holders of Securities or Class A common stock issued upon conversion thereof
shall have at least 20 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.
(2) After the Shelf Registration Statement has become
effective, the Company shall, upon the request of any Holder of Securities or
Class A common stock issued or issuable upon conversion thereof that has not
returned a completed Notice and Questionnaire, promptly send a Notice and
Questionnaire to such Holder. 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 Securities or Class A common stock issued or issuable upon
conversion thereof until such Holder has returned a completed and signed Notice
and Questionnaire to the Company, whereupon the Company will be required to take
such action.
(c) The Company shall keep the Shelf Registration Statement
continuously effective under the Act in order to permit the Prospectus forming
part thereof to be usable by all Holders until the earliest of (i) the second
anniversary of the Closing Date or, if later, the second anniversary of the last
date on which any Securities are issued upon exercise of the Initial Purchasers'
over-allotment option, (ii) the date on which all the Securities and Class A
common stock issued or issuable upon conversion thereof may be sold by
non-affiliates ("affiliates" for such purpose having the meaning set forth in
Rule 144) of the Company pursuant to paragraph (k) of Rule 144 (or any successor
provision) promulgated by the SEC under the Act, (iii) the date as of which all
the Securities and Class A common stock issued or issuable upon conversion
thereof have
5
been transferred pursuant to Rule 144 under the Securities Act (or any similar
provision then in force) and (iv) such date as of which all the Securities and
the Class A common stock issued or issuable upon conversion thereof have been
sold pursuant to the Shelf Registration Statement (in any such case, such period
being called the "Shelf Registration Period"). The Company will, subject to
Section 2(d), prepare and file with the SEC such amendments and post-effective
amendments to the Shelf Registration Statement as may be necessary to keep the
Shelf Registration Statement continuously effective for the Shelf Registration
Period; subject to Section 2(d), cause the related Prospectus to be supplemented
by any required supplement, and as so supplemented to be filed pursuant to Rule
424 (or any similar provisions then in force) under the Act; and, comply in all
material respects with the provisions of the Act with respect to the disposition
of all securities covered by the Shelf Registration Statement during the
applicable period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Shelf Registration Statement as so amended or
such Prospectus as so supplemented.
(d) The Company may suspend the use of the Prospectus for a period not
to exceed 60 days in any three-month period or for three periods not to exceed
an aggregate of 120 days in any twelve-month period (the "Suspension Period")
for valid business reasons, to be determined by the Company in its sole
reasonable judgment (not including avoidance of the Company's obligations
hereunder), including, without limitation, the acquisition or divestiture of
assets, public filings with the SEC, pending corporate developments and similar
events; provided that the Company promptly thereafter complies with the
requirements of Section 3(j) hereof, if applicable; provided, that the existence
of a Suspension Period will not prevent the occurrence of a Registration Default
or otherwise limit the obligation of the Company to pay Liquidated Damages. The
Company shall provide notice to the Holders of a Suspension Period as required
under Section 3(c)(1)(iv) hereof.
(e) If (i) the Shelf Registration Statement is not filed with the SEC
on or prior to 180 days after the Closing Date, (ii) the Shelf Registration
Statement has not been declared effective by the SEC within 240 days after the
Closing Date, or (iii) the Shelf Registration Statement is filed and declared
effective but shall thereafter cease to be effective (without being succeeded
immediately by a replacement shelf registration statement filed and declared
effective) or usable (including as a result of a Suspension Period) for the
offer and sale of Transfer Restricted Securities for a period of time (including
any Suspension Period) which shall exceed 120 days in the aggregate in any
twelve-month period during the period beginning 240 days after the Closing Date
and ending on the second anniversary of the Closing Date or, if later, the
second anniversary of the last date on which any Securities are issued upon
exercise of the Initial Purchasers' over-allotment option (each such event
referred to in clauses (i) through (iii), a "Registration Default"), the Company
will pay liquidated damages ("Liquidated Damages") to each Holder of Transfer
Restricted Securities who has complied with such Holder's obligations under this
Agreement. The amount of Liquidated Damages payable during any period in which a
Registration Default has occurred and is continuing is the amount which is equal
to one-quarter of one percent (25 basis points) per annum per $1,000 principal
amount of Securities and $2.50 per annum per 52.7704 shares of Class A common
stock (subject to adjustment in the event of a stock split, stock recombination,
stock dividend and the like) constituting Transfer Restricted Securities for the
first 90 days during which a Registration Default has occurred and is continuing
and one-half of one percent (50 basis points) per annum per $1,000 principal
amount of Securities and $5.00 per annum per 52.7704 shares of Class A common
stock (subject to adjustment as set forth above) constituting Transfer
Restricted Securities for any additional days during which a Registration
Default has occurred and is continuing (in each case subject to
6
further adjustment from time to time in the event of a stock split, stock
recombination, stock dividend and the like), it being understood that all
calculations pursuant to this and the preceding sentence shall be carried out
to five decimals. Following the cure of all Registration Defaults, Liquidated
Damages will cease to accrue with respect to such Registration Default. All
accrued Liquidated Damages shall be paid by wire transfer of immediately
available funds or by federal funds check by the Company on each Damages
Payment Date and Liquidated Damages will be calculated on the basis of a
360-day year consisting of twelve 30-day months. In the event that any
Liquidated Damages are not paid when due, then to the extent permitted by
law, such overdue Liquidated Damages, if any, shall bear interest until paid
at the Default Rate, compounded semi-annually. The parties hereto agree that
the Liquidated Damages provided for in this Section 2(e) constitute a
reasonable estimate of the damages that may be incurred by Holders by reason
of a Registration Default.
(f) All of the Company's obligations (including, without limitation,
the obligation to pay Liquidated Damages) set forth in the preceding paragraph
which are outstanding or exist with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such security
shall have been satisfied in full.
(g) Immediately upon the occurrence or the termination of a
Registration Default, the Company shall give the Trustee, in the case of notice
with respect to the Securities, and the transfer and paying agent for the Class
A common stock, in the case of notice with respect to Class A common stock
issued or issuable upon conversion thereof, notice of such commencement or
termination, of the obligation to pay Liquidated Damages with regard to the
Securities and Class A common stock and the amount thereof and of the event
giving rise to such commencement or termination (such notice to be contained in
an Officers' Certificate (as such term is defined in the Indenture)), and prior
to receipt of such Officers' Certificate the Trustee and such transfer and
paying agent shall be entitled to assume that no such commencement or
termination has occurred, as the case may be.
(h) Until the later of the second anniversary of the Closing Date and
the second anniversary of the Settlement Date, the Company will not, and will
not permit any Affiliates under the Company's control to, resell any Securities
or Class A common stock issuable upon conversion thereof that have been or may
be acquired by any of them.
3. REGISTRATION PROCEDURES. In connection with any Shelf Registration
Statement, the following provisions shall apply:
(a) The Company shall furnish to you, not less than 5 Business
Days prior to the filing thereof with the SEC, a copy of any Shelf
Registration Statement, and each amendment thereof (excluding
amendments caused by the filing by the Company with the SEC of a report
required by the Exchange Act), a copy of any Prospectus, and each
amendment or supplement, if any, to the Prospectus included therein and
shall use its reasonable best efforts to reflect in each such document,
when so filed with the SEC, such comments as Xxxxxxx Xxxxx Barney Inc.
reasonably may propose. Xxxxxxx Xxxxx Xxxxxx Inc. shall promptly
furnish to the Company any comments it may have to such documents
mentioned in the foregoing sentence.
(b) The Company shall ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming part
thereof
7
and any amendment or supplement thereto comply in all material respects
with the Act and the rules and regulations thereunder, (ii) any
Shelf Registration Statement and any amendment thereto does not,
when it becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading and (iii)
any Prospectus forming part of any Shelf Registration Statement, and
any amendment or supplement to such Prospectus, does not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; PROVIDED
that the Company makes no representation or agreement with respect
to information with respect to you, any Underwriter or any Holder
required to be included in any Shelf Registration or Prospectus
pursuant to the Act or the rules and regulations thereunder and
which information is included therein in reliance upon and in
conformity with information furnished to the Company in writing by
you, any Underwriter or any such Holder.
(c) (1) The Company, as promptly as reasonably practicable,
shall advise you and each Holder that has returned a completed and
signed Notice and Questionnaire to the Company and, if requested by you
or any such Holder, confirm such advice in writing:
(i) when a Shelf Registration Statement and any
amendment thereto has been filed with the SEC and when the
Shelf Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of any request by the SEC for amendments or
supplements to the Shelf Registration Statement or the
Prospectus or for additional information;
(iii) of the determination by the Company that a
post-effective amendment to the Shelf Registration Statement
would be appropriate; and
(iv) of the commencement or termination of any
Suspension Period
(which advised in the case of clauses 3(a)(ii)-(iv) shall be
accompanied by an instruction to suspend the use of the Prospectus
until the requisite changes have been made).
(2) The Company shall advise you and each Holder that
has returned a completed and signed Notice and Questionnaire to the
Company and, if requested by you or any such Holder, confirm such
advice in writing:
(i) of the issuance by the SEC of any stop order
suspending the effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for that
purpose;
(ii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities included in any Shelf
Registration Statement for sale in any jurisdiction or the
initiation or threat of any proceeding for such purpose;
and
8
(iii) of the suspension of the use of the Prospectus
pursuant to Section 2(d) hereof or of the happening of any
event that requires the making of any changes in the Shelf
Registration Statement or the Prospectus so that, as of such
date, the statements therein are not misleading and the Shelf
Registration Statement or the Prospectus, as the case may be,
does not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they
were made) not misleading
(which advice shall be accompanied by an instruction to suspend the use
of the Prospectus until the requisite changes have been made).
(d) The Company shall use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Shelf
Registration Statement or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the
Securities for offer or sale in any jurisdiction at the earliest
possible time.
(e) The Company shall furnish to each Holder of Securities and
the Class A common stock issued upon conversion thereof included within
the coverage of any Shelf Registration Statement, if the Holder so
requests in writing, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules and all materials
incorporated therein by reference, and, if the Holder so requests in
writing, all exhibits (including those incorporated by reference).
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities or the Class A common stock issued
upon conversion thereof included within the coverage of any Shelf
Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such
Shelf Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request; and, except during the continuance
of any Suspension Period, the Company consents during the Shelf
Registration Period to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders in connection with
the offering and sale of the Securities or the Class A common stock
issued upon conversion thereof covered by the Prospectus or any
amendment or supplement thereto.
(g) Prior to any offering of Securities or the Class A common
stock issued upon conversion thereof pursuant to any Shelf Registration
Statement, the Company shall register or qualify or cooperate with the
Holders of Securities and the Class A common stock issued upon
conversion thereof included therein and their respective counsel in
connection with the registration or qualification (or exemption from
such registration or qualification) of such Securities or Class A
common stock for offer and sale, as the case may be, under the
securities or blue sky laws of such jurisdictions as any such Holders
reasonably request in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities and the Class A common stock issued
upon conversion thereof covered by such Shelf Registration Statement;
PROVIDED, HOWEVER, that the Company will not be required to (A) qualify
generally to do business in any jurisdiction where it is not then so
qualified or to (B) take
9
any action which would subject it to general service of process in any
such jurisdiction where it is not then so subject.
(h) The Company shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing
Securities or the Class A common stock issued upon conversion thereof
to be sold pursuant to any Shelf Registration Statement free of any
restrictive legends and in such denominations and registered in such
names as Holders may request prior to sales of Securities or the Class
A common stock issued upon conversion thereof pursuant to such Shelf
Registration Statement.
(i) Subject to the exceptions contained in (A) and (B) of
subsection (g) hereof, the Company shall use its best efforts to cause
the Securities and Class A common stock issued upon conversion thereof
covered by the applicable Shelf Registration Statement to be registered
with or approved by such other federal, state and local governmental
agencies or authorities, and self-regulatory organizations in the
United States as may be necessary to enable the Holders to consummate
the disposition of such Securities and Class A common stock issued upon
conversion thereof as contemplated by the Shelf Registration Statement;
without limitation to the foregoing, the Company shall make all filings
and provide all such information as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") in connection with
the offering under the Shelf Registration Statement of the Securities
and Class A common stock issued upon conversion thereof (including,
without limitation, such as may be required by NASD Rule 2710 or 2720),
and shall cooperate with each Holder in connection with any filings
required to be made with the NASD by such Holder in that regard.
(j) Upon the occurrence of any event contemplated by paragraph
3(c)(2)(iii) above and subject to Section 3(a) hereof, the Company
shall promptly prepare and file with the SEC a post-effective amendment
to any Shelf Registration Statement or an amendment or supplement to
the related Prospectus or any document incorporated therein by
reference or file a document which is incorporated or deemed to be
incorporated by reference in such Shelf Registration Statement or
Prospectus, as the case may be, so that, as thereafter delivered to
purchasers of the Securities or the Class A common stock issued upon
conversion thereof included therein, the Shelf Registration Statement
and the Prospectus, in each case as then amended or supplemented, will
not include an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein (in the case of the Prospectus in light of
the circumstances under which they were made) not misleading and in the
case of a post-effective amendment, cause it to become effective as
promptly as practicable; provided that the Company's obligations under
this paragraph (j) shall be suspended if the Company has suspended the
use of the Prospectus in accordance with Section 2(d) hereof and given
notice of such suspension to Holders, it being understood that the
Company's obligations under this Subsection (j) shall be automatically
reinstated at the end of such Suspension Period.
(k) The Company shall use its reasonable best efforts to
cause The Depository Trust Company ("DTC") on the first Business Day
following the effective date of any Shelf Registration Statement
hereunder or as soon as possible thereafter to remove (i) from any
existing CUSIP number assigned to the
10
Securities any designation indicating that the Securities are
"restricted securities", which efforts shall include delivery to DTC
of a letter executed by the Company substantially in the form of
Exhibit B hereto and (ii) any other stop or restriction on DTC's
system with respect to the Securities. In the event the Company is
unable to cause DTC to take actions described in the immediately
preceding sentence, the Company shall take such actions as Xxxxxxx
Xxxxx Xxxxxx Inc. may reasonably request to provide, as soon as
practicable, a CUSIP number for the Securities registered under such
Shelf Registration Statement and to cause such CUSIP number to be
assigned to such Securities (or to the maximum aggregate principal
amount of the Securities to which such number may be assigned). Upon
compliance with the foregoing requirements of this Section 3(k), the
Company shall provide the Trustee with global certificates for such
Securities in a form eligible for deposit with DTC.
(l) The Company shall use its best efforts to comply with all
applicable rules and regulations of the SEC and shall make generally
available to its security holders as soon as practicable but in any
event not later than 15 months after (i) the effective date of the
applicable Shelf Registration Statement, (ii) the effective date of
each post-effective amendment to any Shelf Registration Statement, and
(iii) the date of each filing by the Company with the SEC of an Annual
Report on Form 10-K that is incorporated by reference or deemed to be
incorporated by reference in the Shelf Registration Statement, an
earnings statement satisfying the provisions of Section 11(a) of the
Act and Rule 158 promulgated by the SEC thereunder.
(m) The Company shall use its best efforts to cause the
Indenture to be qualified under the TIA (as defined in the Indenture)
in a timely manner.
(n) The Company shall cause all Class A common stock issued or
issuable upon conversion of the Securities to be listed on each
quotation system or securities exchange on which the Class A common
stock is then listed no later than the date the applicable Shelf
Registration Statement is declared effective and, in connection
therewith, to make such filings as may be required under the Exchange
Act and to have such filings declared effective as and when required
thereunder.
(o) The Company may require each Holder of Securities or the
Class A common stock issued upon conversion thereof to be sold pursuant
to any Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such
Securities or Class A common stock sought by the Notice and
Questionnaire and such additional information as may, from time to
time, be required by the Act and the rules and regulations promulgated
thereunder, and the obligations of the Company to any Holder hereunder
shall be expressly conditioned on the compliance of such Holder with
such request.
(p) The Company shall, if reasonably requested, use its best
efforts to promptly incorporate in a Prospectus supplement or
post-effective amendment to a Shelf Registration Statement (i) such
information as the Majority Holders provide or, if the Securities or
Class A common stock are being sold in an Underwritten Offering, as
the Managing Underwriters or the Majority Underwriting Holders
reasonably agree should be included therein and provide to
11
the Company in writing for inclusion in the Shelf Registration
Statement or Prospectus, and (ii) such information as a Holder may
provide from time to time to the Company in writing for inclusion in
a Prospectus or any Shelf Registration Statement concerning such
Holder and the distribution of such Holder's Securities and Class A
common stock and, in either case, shall make all required filings of
such Prospectus supplement or post-effective amendment as soon as
practicable after being notified in writing of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment, provided that the Company shall not be required to take
any action under this Section 3(p) that is not, in the reasonable
opinion of counsel for the Company, in compliance with applicable
law.
(q) The Company shall enter into such customary agreements
(including underwriting agreements) and, subject to this Agreement[and
the registration rights of certain holders of shares of the Company's
capital stock as referenced in the Offering Memorandum], take all other
appropriate actions as may be reasonably requested in order to expedite
or facilitate the registration or the disposition of the Securities or
the Class A common stock issued or issuable upon conversion thereof,
and in connection therewith, if an underwriting agreement is entered
into, cause the same to contain indemnification and contribution
provisions and procedures no less favorable than those set forth in
Section 5 (or such other reasonable and customary provisions and
procedures acceptable to the Majority Underwriting Holders and the
Managing Underwriters, if any, with respect to all parties to be
indemnified pursuant to Section 5). The plan of distribution in the
Shelf Registration Statement and the Prospectus included therein shall
permit resales of the Securities or Class A common stock issuable upon
conversion thereof to be made by selling security holders through
underwriters, brokers and dealers, and shall also include such other
information as Xxxxxxx Xxxxx Xxxxxx Inc. may reasonably request.
(r) The Company shall (i) make reasonably available for
inspection by the Holders of Securities and the Class A common stock
issued upon conversion thereof registered or to be registered under a
Shelf Registration Statement, any Underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and any
attorney, accountant or other agent retained by the Holders or any such
Underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries
as is customary for due diligence examinations in connection with
public offerings; (ii) cause the Company's officers, directors and
employees to supply all relevant information reasonably requested by
the Holders or any such Underwriter, attorney, accountant or agent in
connection with any such Shelf Registration Statement as is customary
for similar due diligence examinations; PROVIDED, HOWEVER, that any
information that is designated in writing by the Company, in its sole
discretion, as confidential at the time of delivery of such information
shall be kept confidential by the Holders or any such Underwriter,
attorney, accountant or agent, unless disclosure thereof is made in
connection with a court, administrative or regulatory proceeding or
required by law, or such information has become available to the public
generally through the Company or through a third party without an
accompanying obligation of confidentiality; provided, further, that if
the foregoing inspection and information gathering specified in
subsections (i) and (ii) would, in the Company's reasonable judgment,
disrupt the Company's conduct of business, such inspections and
information gathering shall be coordinated on behalf of the Holders
and the other parties entitled thereto by one counsel reason ably
acceptable to the Company designated by or on behalf of the Majority
Holders (or, in the case of an Underwritten Offering, the Majority
Underwriting
12
Holders and the Managing Underwriters); (iii) make such
representations and warranties TO the Underwriters, if any, in form,
substance and scope as are customarily made by issuers to
Underwriters and covering matters including, but not limited to,
those set forth in the Purchase Agreement; (iv) obtain opinions of
counsel to the Company and updates thereof (which counsel and
opinions, in form, scope and substance, shall be reasonably
satisfactory to the Managing Underwriters, if any) addressed to each
selling Holder and the Underwriters, if any, covering such matters
as are customarily covered in opinions requested in public offerings
and such other matters as may be reasonably requested by such
Holders and Underwriters; (v) obtain "cold comfort" letters and
updates thereof from the independent certified public accountants of
the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Shelf
Registration Statement), addressed to each selling Holder of
Securities and Class A common stock issued upon conversion thereof
registered thereunder (provided such Holder furnishes the
accountants with such representations as the accountants customarily
require in similar situations) and the Underwriters, if any, in
customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with primary underwritten
offerings; and (vi) deliver such documents and certificates as may
be reasonably requested by the Majority Holders or, in the case of
an Underwritten Offering, the Majority Underwriting Holders, and the
Managing Underwriters, if any, including those to evidence
compliance with Section 3(j) and with any customary conditions
contained in the underwriting agreement or other agreement entered
into by the Company. The foregoing actions set forth in clauses
(iii), (iv), (v) and (vi) of this Section 3(r) shall be performed at
(A) the effectiveness of such Shelf Registration Statement and each
post-effective amendment thereto and (B) each closing under any
underwriting or similar agreement as and to the extent required
thereunder.
(s) Each Holder agrees that, upon receipt of notice of the
happening of an event described in Sections 3(c)(1)(ii) through and
including 3(c)(1)(iv) and Sections 3(c)(2)(i) through and including
3(c)(2)(iii), each Holder shall forthwith discontinue (and shall cause
its agents and representatives to discontinue) disposition of the
Securities and the Class A common stock issuable upon conversion
thereof and will not resume disposition of such Securities or the Class
A common stock until such Holder has received copies of an amended or
supplemented Prospectus contemplated by Section 3(j) hereof, or until
such Holder is advised in writing by the Company that the use of the
Prospectus may be resumed or that the relevant Suspension Period has
been terminated, as the case may be, provided that, the foregoing shall
not prevent the sale, transfer or other disposition of Securities or
Class A common stock issuable upon conversion thereof by a Holder in a
transaction which is exempt from, or not subject to, the registration
requirements of the Act, so long as such Holder does not and is not
required to deliver the applicable Prospectus or Shelf Registration
Statement in connection with such sale, transfer or other disposition,
as the case may be; and provided, further, that the provisions of this
paragraph (s) shall not prevent the occurrence of a Registration
Default or otherwise limit the obligation of the Company to pay
Liquidated Damages.
(t) Anything herein to the contrary notwithstanding, the
Company will not be required to pay the costs and expenses of, or to
participate in the marketing or "road show" presentations of, more than
one Underwritten Offering initiated at
13
the request of the Holders of Securities or shares of Class A common
stock issued or issuable upon conversion thereof, or to effect more
than one Underwritten Offering at the request of such Holders. The
Company will not be required to pay the costs and expenses of, or to
participate in the marketing or "road show" presentations of, an
Underwritten Offering unless Holders of at least the Minimum Amount
(as defined below) of Securities or Class A common stock issued or
issuable on conversion thereof have requested that such Securities
or shares of Class A common stock be included in such an
Underwritten Offering. For purposes of this Agreement, the "Minimum
Amount" means 25% of the aggregate principal amount of Securities
originally issued under the Indenture; provided that, for purposes
of computing the Minimum Amount, Holders of Class A common stock
issued upon conversion of Securities shall be deemed to be holders
of the aggregate principal amount of Securities which were converted
into those shares of Class A common stock. Only Holders of
Securities or shares of Class A common stock issued or issuable upon
conversion thereof which are Transfer Restricted Securities shall be
entitled to include such Securities or shares of Class A common
stock in an Underwritten Offering and only Transfer Restricted
securities shall be included in the computation of the Minimum
Amount. The Underwritten Offering initiated by Holders as aforesaid
shall include both Securities and Class A common stock if so
requested by the Holders. Upon receipt by the Company, from Holders
of at least the Minimum Amount of Securities or Class A common stock
issued or issuable upon conversion thereof, of a request for an
Underwritten Offering, the Company will, within 10 days thereafter,
mail notice to all Holders of Securities and shares of Class A
common stock issued upon conversion thereof stating that: (i) the
Company has received a request from the Holders of the requisite
amount of Securities or Class A common stock issued or issuable on
conversion thereof to effect an Underwritten Offering on behalf of
such Holders; (ii) under the terms of this Agreement, all Holders of
Securities and shares of Class A common stock issued or issuable
upon conversion thereof which are Transfer Restricted Securities may
include their Securities and shares of Class A common stock in such
Underwritten Offering, subject to the terms and conditions set forth
in this Agreement and subject to the right of the Managing
Underwriters to reduce, in light of market conditions and other
similar factors, the aggregate principal amount of Securities and
number of shares of Class A common stock included in such
Underwritten Offering; (iii) all Holders electing to include
Securities or shares of Class A common stock in such Underwritten
Offering must notify the Company in writing of such election (the
"Election"), and setting forth an address and facsimile number to
which such written elections may be sent and the deadline (which
shall be 12:00 midnight on the 30th calendar day after such notice
is mailed to Holders or, if not a Business Day, the next succeeding
Business Day (the "Deadline")) by which such elections must be
received by the Company; and (iv) setting forth such other
instructions as shall be necessary to enable Holders to include
their Securities and shares of Class A common stock in such
Underwritten Offering. No Holder shall be entitled to participate in
an Underwritten Offering unless such Holder notifies the Company of
such Election by the Deadline. Notwithstanding anything to the
contrary contained herein, if the Managing Underwriters for an
Underwritten Offering to be effected pursuant to this Section 3(t)
advise the Holders of the Securities and shares of the Class A
common stock to be included in such Underwritten Offering that,
because of the aggregate principal amount of Securities or number of
shares of Class A common stock that such Holders have requested be
included in the Underwritten Offering, the success of the offering
would likely be materially adversely affected by the inclusion of
all of the Securities and shares of Class A
14
common stock requested to be included, then the principal amount of
Securities and the number of shares of Class A common stock to be
offered for the accounts of Holders shall be reduced pro rata,
according to the aggregate principal amount of Securities and number
of shares of Class A common stock, respectively, requested for
inclusion by each such Holder, to the extent necessary to reduce the
size of the offering to the size recommended by the Managing
Underwriter. Notwithstanding anything to the contrary contained
herein, (i) except as may be required by the terms of the
registration rights of certain holders of the Company's capital
stock pursuant to agreements referenced in the Offering Memorandum,
neither the Company nor any Person, other than a Holder of
Securities or shares of Class A common stock issued or issuable upon
conversion thereof and only with respect to its Transfer Restricted
Securities, shall be entitled to include any securities in the
Underwritten Offering and (ii) in connection with any Underwritten
Offering, the rights granted under this Agreement shall be subject
in all respects to the terms of the registration rights of certain
holders of the company's capital stock pursuant to agreements
referenced in the Offering Memorandum.
4. REGISTRATION EXPENSES. The Company shall bear all expenses incurred
in connection with the performance of its obligations under Sections 2 and 3
hereof and shall reimburse the Holders for the reasonable fees and disbursements
of one firm or counsel designated by the Majority Holders and reasonably
acceptable to the Company to act as counsel for the Holders in connection
therewith. Notwithstanding the provisions of this Section 4, each Holder shall
bear the expenses of any broker's commission, agency fee or underwriter's
discount or commission.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) (i) The Company agrees to indemnify and hold harmless each Holder
of Securities and each Holder of Class A common stock issued upon conversion
thereof covered by any Shelf Registration Statement (including the Initial
Purchasers), the directors, officers, employees and agents of each such Holder
and each person who controls any such Holder within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement as originally filed or in any amendment thereof, or in
any preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by any of them in connection with investigating or defending any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon (A) any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any such Holder or any Initial Purchaser
specifically for inclusion therein; (B) use of a Shelf Registration Statement or
the related Prospectus during a period when a stop order has been issued in
respect of such Shelf Registration Statement or any proceedings for that purpose
have
15
been initiated or use of a Prospectus when use of such Prospectus has been
suspended pursuant to Section 2(d) or 3(s), PROVIDED, in each case, that the
Company shall have timely advised such Holder, in accordance with Section 3(c)
of this Agreement, of such stop order, initiation of proceedings or suspension;
or (C) if the Holder fails to deliver a Prospectus as then amended or
supplemented, PROVIDED that the Company shall have timely delivered to such
Holder such Prospectus, as then amended or supplemented. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(ii) The Company also agrees to indemnify and to contribute to
Losses, as provided in Section 5(d), of any Underwriters of Securities or Class
A common stock issued upon conversion thereof registered under a Shelf
Registration Statement, their officers and directors and each person who
controls any such Underwriter within the meaning of either the Act or the
Exchange Act on substantially the same basis as that of the indemnification of
the Initial Purchasers and the selling Holders provided in this Section 5(a) and
shall, if requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 3(q) hereof. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Holder of Securities or Class A common stock issued upon
conversion thereof covered by a Shelf Registration Statement (including the
Initial Purchasers) severally and not jointly agrees to indemnify and hold
harmless (i) the Company, (ii) each of its directors, (iii) each of its officers
who signs such Shelf Registration Statement and (iv) each person who controls
the Company within the meaning of either the Act or the Exchange Act to the same
extent as the foregoing indemnity from the Company to each such Holder, but only
with reference to written information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 5
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 5, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses; and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); PROVIDED, HOWEVER, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel (and local
counsel) if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest;
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying
16
party and the indemnified party shall have concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action; or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without
the prior written consent of the indemnified party, 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 such indemnified party from all liability arising out of such
claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 5 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have an obligation to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses"), as incurred, to which such indemnified party may be
subject in such proportion as is appropriate to reflect the relative benefits
received by such indemnifying party, on the one hand, and such indemnified
party, on the other hand, from the Initial Placement and the Shelf Registration
Statement which resulted in such Losses; PROVIDED, HOWEVER, that in no case
shall the Initial Purchasers be responsible, in the aggregate, for any amount in
excess of the purchase discount or commission applicable to the Securities, as
set forth in the Offering Memorandum, nor shall any Underwriter be responsible
for any amount in excess of the underwriting discount or commission applicable
to the Securities and Class A common stock issued upon conversion thereof
purchased by such Underwriter under the Shelf Registration Statement which
resulted in such Losses. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the sum of (x) the total net
proceeds from the Initial Placement (before deducting expenses) as set forth in
the Offering Memorandum and (y) the total amount of Liquidated Damages that the
Company was not required to pay as a result of registering the Securities and
Class A common stock issued upon conversion thereof covered by the Shelf
Registration Statement which resulted in such Losses. Benefits received by the
Initial Purchasers shall be deemed to be equal to the total purchase discounts
and commissions as set forth on the cover page of the Offering Memorandum,
and benefits received by any other Holders shall be deemed to be equal to the
value of receiving Securities or the Class A common stock issuable upon
conversion thereof registered under the Act. Benefits received by any
Underwriter shall be deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming a part of
the Shelf Registration Statement (or the applicable Prospectus supplement) which
resulted in such Losses. Relative fault shall be determined by reference to
whether any untrue statement or omission or alleged untrue statement or omission
relates to information provided by the indemnifying party, on the one hand, or
by the indemnified party, on the other hand. The parties agree that it would not
be just and equitable if contribution were determined by pro rata allocation or
any other method
17
of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section
5, each person who controls a Holder within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of such
Holder shall have the same rights to contribution as such Holder, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Shelf
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, and each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
officer and director of each Underwriter shall have the same rights to
contribution as such Underwriter, subject in each case to the applicable
terms and conditions of this paragraph (d).
(e) The provisions of this Section 5 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder, any
Underwriter or the Company or any of the officers, directors or controlling
persons referred to in Section 5 hereof, and will survive the sale by a Holder
of Securities or shares of Class A common stock covered by a Shelf Registration
Statement.
6. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company has not, as of the date
hereof, entered into nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Majority Holders; PROVIDED that with respect to any matter that directly or
indirectly affects the rights of the Initial Purchasers hereunder, the Company
shall obtain the written consent of each of the Initial Purchasers against which
such amendment, qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Securities or Class A common
stock are being sold pursuant to a Shelf Registration Statement and that does
not directly or indirectly affect the rights of other Holders may be given by
the Majority Holders, determined on the basis of Securities or Class A common
stock issued upon conversion thereof being sold rather than registered under
such Shelf Registration Statement.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier, or air courier guaranteeing overnight delivery:
(1) if to you, initially at the address set forth in the
Purchase Agreement;
(2) if to any other Holder, at the most current address given
by such Holder to the Company in accordance with the provisions of this
Section 6(c), which address initially is, with respect to each Holder,
the address of such Holder
18
maintained by the Registrar under the Indenture or, in the case of
Class A common stock, the address maintained by the registrar of the
Class A common stock, with a copy in like manner to Xxxxxxx Xxxxx
Barney Inc.; and
(3) if to the Company, initially at its address set forth in
the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received, if delivered by hand or air courier, and when sent, if sent
by first-class mail or telecopier.
The Initial Purchasers or the Company by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders. The Company hereby agrees to extend the
benefits of this Agreement to any Holder and Underwriter and any such Holder and
Underwriter may specifically enforce the provisions of this Agreement as if an
original party hereto. In the event that any other person shall succeed to the
Company under the Indenture as provided in Article VII thereof, then such
successor shall enter into an agreement, in form and substance reasonably
satisfactory to the Initial Purchasers, whereby such successor shall assume all
of the Company's obligations under this Agreement.
(e) COUNTERPARTS. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SAID STATE, WITHOUT REGARD, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TO THE CONFLICTS OF LAW RULES THEREOF.
(h) SEVERABILITY. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances,
is held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way
impaired or affected thereby, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent
permitted by law.
(i) SECURITIES HELD BY THE COMPANY, ETC. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or the Class A common stock issuable upon conversion thereof is required
hereunder, Securities or the Class A common stock issued upon conversion thereof
held by the Company or its Affiliates (other than subsequent Holders of
Securities or the Class A common stock issued upon conversion thereof if such
subsequent Holders are deemed to be Affiliates
19
solely by reason of their holdings of such Securities) shall not be counted
in determining whether such consent or approval was given by the Holders of
such required percentage.
20
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
XXXX.XXX, INC.
/s/ XXXXX XXXXXXXX
---------------------------
Name: Xxxxx Xxxxxxxx
Title: Executive Vice
Presidend and
General Counsel
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
XXXXXXX XXXXX XXXXXX INC.
PAINEWEBBER INCORPORATED
XX XXXXX SECURITIES CORPORATION
SANDS BROTHERS & CO., LTD.
As representatives of the Initial Purchasers
named in Schedule I to the Purchase
Agreement.
BY: XXXXXXX XXXXX XXXXXX INC.
By /s/ XXXX XXXXXX
---------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
21
EXHIBIT A
Xxxx.xxx, Inc.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
Reference is hereby made to the Registration Agreement (the
"Registration Agreement") between Xxxx.xxx, Inc., a Delaware corporation (the
"Company"), and the Initial Purchasers named therein. Pursuant to the
Registration Agreement, the Company has filed or will file with the United
States Securities and Exchange Commission (the "Commission") a registration
statement on Form S-3 (the "Shelf Registration Statement") for the registration
and resale under Rule 415 of the Securities Act of 1933, as amended (the
"Securities Act"), of the Company's 7.00% Convertible Subordinated Notes due
2005 (the "Securities"), and the shares of the Company's Class A common stock,
par value $.01 per share (the "Class A common stock"), issuable upon conversion
thereof. A copy of the Registration Agreement is attached hereto. All
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Registration Agreement.
Each holder and beneficial owner of Transfer Restricted Securities is
entitled to have its Transfer Restricted Securities included in the Shelf
Registration Statement. In order to have Transfer Restricted Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Company's counsel at the following
address, for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]: [NAME AND ADDRESS OF
COUNSEL]. Holders or beneficial owners of Transfer Restricted Securities who do
not complete, execute and return this Notice and Questionnaire by such date (i)
will not be named as selling securityholders in the Shelf Registration Statement
and (ii) may not use the Prospectus forming a part thereof for resales of
Transfer Restricted Securities, subject, however, to the Company's obligations
under Section 2(b)(2) of the Registration Agreement.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Transfer Restricted Securities are
advised to consult their own securities law counsel regarding the consequences
of being named or not being named as a selling securityholder in the Shelf
Registration Statement and related Prospectus.
ELECTION
The undersigned (the "Selling Securityholder") hereby elects to include
in the Shelf Registration Statement the Transfer Restricted Securities held or
beneficially owned by it and listed below in Item (3)(b). The undersigned, by
signing and returning this
A-1
Notice and Questionnaire, agrees to be bound with respect to such Transfer
Restricted Securities by the terms and conditions of this Notice and
Questionnaire and the Registration Agreement, including, without limitation, the
indemnification set forth in Section 5 of the Registration Agreement, as if the
undersigned Selling Securityholder were an original party thereto.
QUESTIONNAIRE
(1) (a) Full legal name of Selling Securityholder:
(b) Full legal name of registered holder (if not the same as in (a)
above) of Transfer Restricted Securities listed in (3) below (if the Transfer
Restricted Securities are held through a broker-dealer or other third party and,
as a result, you do not know the legal name of the registered holder, please
complete Item (1)(c) below):
(c) Full legal name of broker-dealer or other third party through which
Transfer Restricted Securities listed in (3) below are held:
(2) Address for notices to Selling Securityholder:
Telephone:
Fax:
Contact Person:
(3) Beneficial ownership of Transfer Restricted Securities.
EXCEPT AS SET FORTH BELOW IN THIS ITEM (3), THE UNDERSIGNED DOES NOT
BENEFICIALLY OWN ANY SECURITIES OR SHARES OF CLASS A COMMON STOCK WHICH
CONSTITUTE TRANSFER RESTRICTED SECURITIES.
(a) Principal amount of Securities constituting Transfer Restricted
Securities beneficially owned:
Number of shares of Class A common stock, if any, constituting Transfer
Restricted Securities (include only shares of Class A common stock which have
actually been issued, not shares issuable upon future conversion of Securities):
The undersigned also may be deemed to beneficially own such number of
shares of Class A common stock as may be issued from time to time upon
conversion of the Securities listed in Item (3)(a) above.
(b) Principal amount of Securities and number of shares of outstanding
Class A common stock constituting Transfer Restricted Securities which the
undersigned wishes to be included in the Shelf Registration Statement:
Unless otherwise indicated in the space provided below, all Securities,
all shares of Class A common stock listed in response to Item (3)(a) above, and
all shares of Class A common stock issuable upon conversion of the Securities
listed in response to Item (3)(b)above, will be included in the Shelf
Registration Statement. If the undersigned
A-2
does not wish all such Securities or shares of Class A common stock
to be so included, please indicate below the number of such shares to be
included:
(4) Beneficial ownership of other securities of the Company:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (4), THE UNDERSIGNED SELLING
SECURITYHOLDER IS NOT THE BENEFICIAL OR REGISTERED OWNER OF ANY SHARES OF CLASS
A COMMON STOCK OR ANY OTHER SECURITIES OF THE COMPANY, OTHER THAN SECURITIES AND
SHARES OF CLASS A COMMON STOCK LISTED ABOVE IN ITEM (3).
State any exceptions here:
(5) Relationships with the Company:
EXCEPT AS SET FORTH BELOW, NEITHER THE SELLING SECURITYHOLDER NOR ANY
OF ITS OFFICERS, DIRECTORS OR 5% OR GREATER STOCKHOLDERS HAS HELD ANY POSITION
OR OFFICE OR HAS HAD ANY OTHER MATERIAL RELATIONSHIP WITH THE COMPANY (OR ITS
PREDECESSORS OR AFFILIATES)DURING THE PAST THREE YEARS.
State any exceptions here:
(6) Plan of Distribution:
EXCEPT AS SET FORTH BELOW, THE UNDERSIGNED SELLING SECURITYHOLDER
INTENDS TO DISTRIBUTE THE TRANSFER RESTRICTED SECURITIES LISTED ABOVE IN ITEM
(3) ONLY AS FOLLOWS (IF AT ALL): SUCH TRANSFER RESTRICTED SECURITIES MAY BE SOLD
FROM TIME TO TIME BY THE UNDERSIGNED SELLING SECURITYHOLDER (i) TO OR THROUGH
UNDERWRITERS, BROKERS OR DEALERS; (ii) DIRECTLY TO ONE OR MORE OTHER PURCHASERS;
(iii) THROUGH AGENTS ON A BEST-EFFORTS BASIS OR OTHERWISE; OR (iv) THROUGH A
COMBINATION OF ANY SUCH METHODS OF SALE. SUCH TRANSFER RESTRICTED SECURITIES MAY
BE SOLD FROM TIME TO TIME IN ONE OR MORE TRANSACTIONS AT A FIXED PRICE OR
PRICES, WHICH MAY BE CHANGED, AT MARKET PRICES PREVAILING AT THE TIME OF SALE,
AT PRICES RELATED TO SUCH PREVAILING MARKET PRICES, AT VARYING PRICES DETERMINED
AT THE TIME OF SALE, OR AT NEGOTIATED PRICES. SUCH SALES MAY BE EFFECTED IN
TRANSACTIONS (WHICH MAY INVOLVE CROSSES OR BLOCK TRANSACTIONS) (i) ON ANY
NATIONAL SECURITIES EXCHANGE OR QUOTATION SERVICE ON WHICH THE TRANSFER
RESTRICTED SECURITIES MAY BE LISTED OR QUOTED AT THE TIME OF SALE, (ii) IN THE
OVER-THE-COUNTER MARKET, (iii) IN TRANSACTIONS OTHERWISE THAN ON SUCH EXCHANGES
OR SERVICES OR IN THE OVER-THE-COUNTER MARKET, OR (iv) THROUGH THE WRITING OF
OPTIONS. IN CONNECTION WITH SALES OF THE TRANSFER RESTRICTED SECURITIES OR
OTHERWISE, THE SELLING SECURITYHOLDER MAY ENTER INTO HEDGING TRANSACTIONS WITH
BROKERS-DEALERS OR OTHERS, WHICH MAY IN TURN ENGAGE IN SHORT SALES OF THE
TRANSFER RESTRICTED SECURITIES IN THE COURSE OF HEDGING THE POSITIONS THEY
ASSUME. THE SELLING SECURITYHOLDER MAY ALSO SELL TRANSFER RESTRICTED SECURITIES
SHORT AND DELIVER TRANSFER RESTRICTED SECURITIES TO CLOSE OUT SUCH SHORT
POSITIONS, OR LOAN OR PLEDGE TRANSFER RESTRICTED SECURITIES TO BROKERS-DEALERS
OR OTHERS THAT IN TURN MAY SELL SUCH SECURITIES. THE SELLING SECURITYHOLDER MAY
PLEDGE OR GRANT A SECURITY INTEREST IN SOME OR ALL OF THE TRANSFER RESTRICTED
SECURITIES OWNED BY IT AND, IF IT DEFAULTS IN THE PERFORMANCE OF ITS SECURED
OBLIGATIONS, THE PLEDGEES OR SECURED PARTIES MAY OFFER AND SELL THE TRANSFER
RESTRICTED SECURITIES FROM TIME TO TIME
A-3
PURSUANT TO THE PROSPECTUS. THE SELLING SECURITYHOLDER ALSO MAY TRANSFER AND
DONATE SHARES IN OTHER CIRCUMSTANCES IN WHICH CASE THE TRANSFEREES, DONEES,
PLEDGEES OR OTHER SUCCESSORS IN INTEREST WILL BE THE SELLING STOCKHOLDERS FOR
PURPOSES OF THE PROSPECTUS. THE SELLING SECURITYHOLDER MAY SELL SHORT THE
CLASS A COMMON STOCK AND MAY DELIVER THE PROSPECTUS IN CONNECTION WITH SUCH
SHORT SALES AND USE THE SHARES COVERED BY THE PROSPECTUS TO COVER SUCH SHORT
SALES.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, particularly Regulation M and the prospectus delivery
requirements under the Securities Act.
In the event that the Selling Securityholder transfers all or any
portion of the Transfer Restricted Securities listed in Item (3) above after the
date on which such information is provided to the Company (other than a
transaction as a result of which such securities shall no longer be Transfer
Restricted Securities), the Selling Securityholder agrees to notify the
transferees at the time of the transfer of its rights and obligations under this
Notice and Questionnaire and the Registration Agreement.
By signing below, the Selling Securityholder consents to the disclosure
of the information contained herein in its answers to Items (1) through (6)
above and the inclusion of such information in the Shelf Registration Statement
and related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
The Selling Securityholder agrees to promptly notify the Company of any
inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration Statement
remains in effect. All notices hereunder and pursuant to the Registration
Agreement shall be made in writing, by hand-delivery, first-class mail, or air
courier guaranteeing overnight delivery as follows:
Xxxx.xxx, Inc.
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Transfer Restricted
Securities beneficially owned by such Selling Securityholder and listed in Item
(3)(b) above). This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
A-4
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
Selling Securityholder
(Print/type full legal name
of beneficial owner of
Transfer Restricted
Securities).
By:
------------------------
Name:
Title:
A-5
EXHIBIT B
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
The Depository Trust Company
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Re: 7% Convertible Subordinated Notes due 2005 (the "Securities")
of Xxxx.xxx, Inc.
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission has
declared effective a Registration Statement on Form S-3 under the Securities Act
of 1933, as amended, with regard to all of the Securities referenced above.
Accordingly, there is no longer any restriction as to whom such Securities may
be sold and any restrictions on the CUSIP designation are no longer appropriate
and may be removed. I understand that upon receipt of this letter, DTC will
remove any stop or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can of further
assistance.
Very truly yours,
By:
------------------------
Authorized Officer
B-1
