REGISTRATION RIGHTS AGREEMENT DATED AS OF AUGUST 8, 2003 AMONG ANDREW CORPORATION AND MORGAN STANLEY & CO. INCORPORATED, BANC OF AMERICA SECURITIES LLC AND CITIGROUP GLOBAL MARKETS INC., AS REPRESENTATIVES OF THE INITIAL PURCHASERS
Exhibit
(d)(3)
DATED
AS
OF AUGUST 8, 2003
AMONG
XXXXXX
CORPORATION
AND
XXXXXX
XXXXXXX & CO. INCORPORATED,
BANC
OF
AMERICA SECURITIES LLC
AND
CITIGROUP
GLOBAL MARKETS INC.,
AS
REPRESENTATIVES OF THE INITIAL PURCHASERS
REGISTRATION
RIGHTS AGREEMENT dated as of August 8, 2003 among Xxxxxx Corporation, a Delaware
corporation (the “COMPANY”), and Xxxxxx Xxxxxxx & Co. Incorporated, Banc of
America Securities LLC and Citigroup Global Markets Inc., as representatives
of
the several initial purchasers listed on Schedule I (the “INITIAL PURCHASERS”)
to the Purchase Agreement dated August 5, 2003 (the “PURCHASE AGREEMENT”) with
the Company. In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement. The execution of this Agreement is a condition
to
the closing under the Purchase Agreement.
The
Company agrees with the Initial Purchasers, (i) for their benefit as Initial
Purchasers and (ii) for the benefit of the beneficial owners (including the
Initial Purchasers) from time to time of the Securities (as defined herein)
and
the beneficial owners from time to time of the Underlying Common Stock (as
defined herein) issued upon conversion of the Securities (each of the foregoing
a “HOLDER” and together the “HOLDERS”), as follows:
Section
1. DEFINITIONS.
Capitalized terms used herein without definition shall have their respective
meanings set forth in the Purchase Agreement. As used in this Agreement,
the
following terms shall have the following meanings:
“ADDITIONAL
INTEREST AMOUNT” has the meaning set forth in Section 2(e) hereof.
“AFFILIATE”
means with respect to any specified person, an “affiliate,” as defined in Rule
144, of such person.
“AMENDMENT
EFFECTIVENESS DEADLINE” has the meaning set forth in Section 2(d)
hereof.
“BUSINESS
DAY” means any day, except a Saturday, Sunday or legal holiday on which banking
institutions in The City of New York are authorized or obligated by law or
executive order to close.
“COMMON
STOCK” means the shares of common stock, $0.01 par value per share, of the
Company, together with the Rights evidenced by such common stock to the extent
provided in the Rights Agreement, and any other shares of common stock as
may
constitute “Common Stock” for purposes of the Indenture, including the
Underlying Common Stock.
“CONVERSION
PRICE” has the meaning assigned such term in the Indenture.
“DEFERRAL
NOTICE” has the meaning set forth in Section 3(h) hereof.
“DEFERRAL
PERIOD” has the meaning set forth in Section 3(h) hereof.
“EFFECTIVENESS
DEADLINE” has the meaning set forth in Section 2(a) hereof.
“EFFECTIVENESS
PERIOD” means the period commencing on the first date that a Shelf Registration
Statement is declared effective under the Securities Act hereof and ending
on
the date that all Securities and the Underlying Common Stock have ceased
to be
Registrable Securities.
“EVENT”
has the meaning set forth in Section 2(e) hereof.
“EXCHANGE
ACT” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.
“FILING
DEADLINE” has the meaning set forth in Section 2(a) hereof.
“HOLDER”
has the meaning set forth in the second paragraph of this
Agreement.
“INDENTURE”
means the Indenture, dated as of August 8, 2003, between the Company and
BNY
Midwest Trust Company, as trustee, pursuant to which the Securities are being
issued.
“INITIAL
PURCHASERS” means the Initial Purchasers named in Schedule I to the Purchase
Agreement.
“INTEREST
PAYMENT DATE” means each February 15 and August 15.
“ISSUE
DATE” means the first date of original issuance of the Securities.
“LIQUIDATED
DAMAGES AMOUNT” has the meaning set forth in Section 2(e) hereof.
“MATERIAL
EVENT” has the meaning set forth in Section 3(h) hereof.
“NOTICE
AND QUESTIONNAIRE” means a written notice delivered to the Company containing
substantially the information called for by the Selling Securityholder Notice
and Questionnaire attached as Annex A to the Offering Memorandum of the Company
dated August 5, 2003 relating to the Securities.
“NOTICE
HOLDER” means, on any date, any Holder that has delivered a Notice and
Questionnaire to the Company on or prior to such date.
“PURCHASE
AGREEMENT” has the meaning set forth in the preamble hereof.
“PROSPECTUS”
means a prospectus relating to a Shelf Registration Statement, as amended
or
supplemented, and all materials incorporated by reference in such
Prospectus.
“RECORD
HOLDER” means with respect to any Interest Payment Date relating to any
Securities or Underlying Common Stock as to which any Additional Interest
Amount
or Liquidated Damages Amount has accrued, the registered holder of such Security
or Underlying Common Stock on the February 1 or August 1 immediately preceding
the Interest Payment Date.
“REGISTRABLE
SECURITIES” means the Securities until such Securities have been converted into
or exchanged for the Underlying Common Stock and, at all times subsequent
to any
such conversion, the Underlying Common Stock and any securities into or for
which such Underlying Common Stock has been converted or exchanged, and any
security issued with respect thereto upon any stock dividend, split or similar
event until, in the case of any such security, (A) the earliest of (i) its
effective registration under the Securities Act and resale in accordance
with a
Shelf Registration Statement, (ii) expiration of the holding period that
would
be applicable thereto under Rule 144(k) or (iii) its sale to the public pursuant
to Rule 144 (or any similar provision then in force, but not Rule 144A) under
the Securities Act, and (B) as a result of the event or circumstance described
in any of the foregoing clauses (i) through (iii), the legend with respect
to
transfer restrictions required under the Indenture is removed or removable
in
accordance with the terms of the Indenture or such legend, as the case may
be.
“REGISTRATION
DEFAULT PERIOD” has the meaning set forth in Section 2(e) hereof.
“RIGHTS
AGREEMENT” means the Stockholder Rights Agreement dated November 14, 1996
between the Company and Xxxxxx Trust and Savings Bank, as rights
agent.
“RULE
144” means Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the
SEC.
“RULE
144A” means Rule 144A under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the
SEC.
“SEC”
means the Securities and Exchange Commission.
“SECURITIES”
means the 3 1/4% Convertible Subordinated Notes Due 2013 of the Company to
be
purchased pursuant to the Purchase Agreement, including any Securities purchased
by the Initial Purchasers upon exercise of their option to purchase additional
Securities.
“SECURITIES
ACT” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the SEC thereunder.
“SHELF
REGISTRATION STATEMENT” has the meaning set forth in Section 2(a) hereof,
including amendments to such registration statement, all exhibits and all
materials incorporated by reference in such registration statement.
“SPECIAL
COUNSEL” means Xxxxx Xxxx & Xxxxxxxx or one such other successor counsel as
shall be specified by the Holders of a majority of the Registrable Securities,
but which may, with the written consent of the Initial Purchasers (which
shall
not be unreasonably withheld), be another nationally recognized law firm
experienced in securities law matters designated by the Company. For purposes
of
determining Holders of a majority of the Registrable Securities in this
definition, Holders of Securities shall be deemed to be the Holders of the
number of shares of Underlying Common Stock into which such Securities are
or
would be convertible as of the date the consent is requested.
“TRUSTEE”
means BNY Midwest Trust Company, the Trustee under the Indenture.
“UNDERLYING
COMMON STOCK” means the Common Stock into which the Securities are convertible
or issued upon any such conversion.
Section
2. SHELF
REGISTRATION. (a) The Company shall prepare and file or cause to be
prepared and filed with the SEC, as soon as practicable but in any event
by the
date (the “FILING DEADLINE”) 90 days after the Issue Date, a registration
statement for an offering to be made on a delayed or continuous basis pursuant
to Rule 415 of the Securities Act registering the resale from time to time
by
Holders of the Registrable Securities (a “SHELF REGISTRATION STATEMENT”). The
Shelf Registration Statement shall be on Form S-3 or another appropriate
form
permitting registration of the Registrable Securities for resale by the Holders
in accordance with the methods of distribution elected by the Holders and
set
forth in the Shelf Registration Statement. The Company shall use its best
efforts to cause a Shelf Registration Statement to be declared effective
under
the Securities Act as promptly as is practicable but in any event by the
date
(the “EFFECTIVENESS DEADLINE”) that is 180 days after the Issue Date, and to
keep a Shelf Registration Statement continuously effective under the Securities
Act until the expiration of the Effectiveness Period. Each Holder that became
a
Notice Holder on or prior to the date ten Business Days prior to the initial
Shelf Registration Statement is declared effective shall be named as a selling
securityholder in the initial Shelf Registration Statement and the related
Prospectus in such a manner as to permit such Holder to deliver the Prospectus
to purchasers of Registrable Securities in accordance with applicable law.
None
of the Company’s security holders (other than the Holders) shall have the right
to include any of the Company’s securities in a Shelf Registration
Statement.
(b)
If a Shelf Registration Statement covering resales of the Registrable Securities
ceases to be effective for any reason at any time during the Effectiveness
Period (other than because all securities registered thereunder shall have
been
resold pursuant thereto or shall have otherwise ceased to be Registrable
Securities), the Company shall use its best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any
event
shall within 30 days of such cessation of effectiveness amend the Shelf
Registration Statement in a manner reasonably expected to obtain the withdrawal
of the order suspending the effectiveness thereof, or file an additional
Shelf
Registration Statement so that all Registrable Securities outstanding as
of the
date of such filing are covered by a Shelf Registration Statement. If a new
Shelf Registration Statement is filed, the Company shall use its best efforts
to
cause the new Shelf Registration Statement to become effective as promptly
as is
practicable after such filing and to keep the new Shelf Registration Statement
continuously effective until the end of the Effectiveness Period.
(c)
The Company shall amend and supplement the Prospectus and amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or file a new Shelf Registration Statement, if required
by the Securities Act, or any other documents necessary to name a Notice
Holder
as a selling securityholder pursuant to Section 2(d) below.
(d)
Each Holder may sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus only in accordance with this Section 2 (d)
and
Section 3 (h) . Each Holder wishing to sell Registrable Securities pursuant
to a
Shelf Registration Statement and related Prospectus shall deliver a Notice
and
Questionnaire to the Company at least three Business Days prior to any intended
distribution of Registrable Securities under the Shelf Registration Statement.
From and after the date the initial Shelf Registration Statement is declared
effective, the Company shall, as promptly as practicable after the date a
Notice
and Questionnaire is delivered, and in any event upon the later of (x) 15
Business Days after such date or (y) five Business Days after the expiration
of
any Deferral Period in effect when the Notice and Questionnaire is delivered
or
put into effect within 15 Business Days of such delivery date:
(i)
if required by applicable law, file with the SEC a post-effective amendment
to
the Shelf Registration Statement or prepare and, if required by applicable
law,
file a supplement to the related Prospectus or a supplement or amendment
to any
document incorporated therein by reference or file a new Shelf Registration
Statement or any other required document so that the Holder delivering such
Notice and Questionnaire is named as a selling securityholder in a Shelf
Registration Statement and the related Prospectus in such a manner as to
permit
such Holder to deliver such Prospectus to purchasers of the Registrable
Securities in accordance with applicable law and, if the Company shall file
a
post-effective amendment to a Shelf Registration Statement or shall file
a new
Shelf Registration Statement, the Company shall use its best efforts to cause
such post-effective amendment or new Shelf Registration Statement to be declared
effective under the Securities Act as promptly as is practicable, but in
any
event by the date (the “AMENDMENT EFFECTIVENESS DEADLINE”) that is 45 days after
the date such post-effective amendment or new Shelf Registration Statement
is
required by this clause to be filed;
(ii)
provide such Holder copies of any documents filed pursuant to Section 2(d)(i);
and
(iii)
notify such Holder as promptly as practicable after the effectiveness under
the
Securities Act of any new Shelf Registration Statement or post-effective
amendment filed pursuant to Section 2(d)(i);
PROVIDED
that if such Notice and Questionnaire is delivered during a Deferral Period,
the
Company shall so inform the Holder delivering such Notice and Questionnaire
and
shall take the actions set forth in clauses (i), (ii) and (iii) above upon
expiration of the Deferral Period in accordance with Section 3(h).
Notwithstanding anything contained herein to the contrary, (i) the Company
shall
be under no obligation to name any Holder that is not a Notice Holder as
a
selling securityholder in any Shelf Registration Statement or related Prospectus
and (ii) the Amendment Effectiveness Deadline shall be extended by up to
ten
Business Days from the expiration of a Deferral Period.
(e)
The parties hereto agree that the Holders of Registrable Securities will
suffer
damages, and that it would not be feasible to ascertain the extent of such
damages with precision, if:
(i)
a Shelf Registration Statement has not been filed on or prior to the Filing
Deadline,
(ii)
a Shelf Registration Statement has not been declared effective under the
Securities Act on or prior to the Effectiveness Deadline,
(iii)
the Company has failed to perform its obligations set forth in Section 2(d)(i)
within the time period required therein,
(iv)
a new Shelf Registration Statement or a post-effective amendment to a Shelf
Registration Statement filed pursuant to Section 2(d)(i) has not become
effective under the Securities Act on or prior to the Amendment Effectiveness
Deadline,
(v)
the aggregate duration of Deferral Periods in any period exceeds the number
of
days permitted in respect of such period pursuant to Section 3(h) hereof,
or
(vi)
the number of Deferral Periods in any period exceeds the number permitted
in
respect of such period pursuant to Section 3(h) hereof.
Each
event described in any of the foregoing clauses (i) through (vi) is individually
referred to herein as an “EVENT.” For purposes of this Agreement, each Event set
forth above shall begin and end on the dates set forth in the table set forth
below:
|
Type
of Event by Clause
|
Beginning
Date
|
Ending
Date
|
|
(i)
|
Filing
Deadline
|
the
date a Shelf Registration Statement is filed
|
|
(ii)
|
Effectiveness
Deadline
|
the
date a Shelf Registration Statement becomes
effective under the Securities Act
|
|
(iii)
|
the
date by which the Company is required to perform its obligations
under
Section 2(d)(i)
|
the
date the Company performs its obligations
set forth in Section 2(d)(i)
|
|
(iv)
|
the
Amendment Effectiveness Deadline
|
the
date the applicable post-effective amendment
to a Shelf Registration Statement or
a new Shelf Registration Statement becomes
effective under the Securities Act
|
|
(v)
|
the
date on which the aggregate duration of Deferral Periods in any
period
exceeds the number of days permitted by Section 3(h)
|
termination
of the Deferral Period that caused
the limit on the aggregate duration of
Deferral Periods to be exceeded
|
|
(vi)
|
the
date of commencement of a Deferral Period that causes the number
of
Deferral Periods to exceed the number permitted by Section
3(h)
|
termination
of the Deferral Period that caused
the number of Deferral Periods to exceed
the number permitted by
Section 3(h) |
For
purposes of this Agreement, Events shall begin on the dates set forth in
the
table above and shall continue until the ending dates set forth in the table
above.
Commencing
on (and including) any date that an Event has begun and ending on (but
excluding) the next date on which there are no Events that have occurred
and are
continuing (a “REGISTRATION DEFAULT PERIOD”), the Company shall pay to Record
Holders of Registrable Securities in respect of each day in the Registration
Default Period, (i) additional interest in respect of any Security, at a
rate
per annum equal to 0.5% of the aggregate principal amount of such Security
(the
“ADDITIONAL INTEREST AMOUNT”) and (ii) liquidated damages in respect of each
share of Underlying Common Stock at a rate per annum equal to 0.5% on the
Conversion Price on such date (the “LIQUIDATED DAMAGES AMOUNT”), as the case may
be; PROVIDED that in the case of a Registration Default Period that is in
effect
solely as a result of an Event of the type described in clause (iii) or (iv)
of
the preceding paragraph, such Additional Interest Amount or Liquidated Damages
Amount, as applicable, shall be paid only to the Holders (as set forth in
the
succeeding paragraph) that have delivered Notices and Questionnaires that
caused
the Company to incur the obligations set forth in Section 2(d) the
non-performance of which is the basis of such Event. In calculating the
Liquidated Damages Amount on shares of Underlying Common Stock on any date
on
which no Securities are outstanding, the Conversion Price used shall be based
on
the Conversion Price that would be in effect if the Securities were still
outstanding. Notwithstanding the foregoing, no Additional Interest Amount
or
Liquidated Damages Amount shall accrue as to any Registrable Security from
and
after the earlier of (x) the date such security is no longer a Registrable
Security and (y) expiration of the Effectiveness Period. The rate of accrual
of
the Additional Interest Amount or the Liquidated Damages Amount, as applicable,
with respect to any period shall not exceed the rate provided for in this
paragraph notwithstanding the occurrence of multiple concurrent
Events.
The
Additional Interest Amount or the Liquidated Damages Amount, as applicable,
shall accrue from the first day of the applicable Registration Default Period,
and shall be payable on each Interest Payment Date during the Registration
Default Period (and on the Interest Payment Date next succeeding the end
of the
Registration Default Period if the Registration Default Period does not end
on a
Interest Payment Date) to the Record Holders of the Registrable Securities
entitled thereto; PROVIDED that any Additional Interest Amount or Liquidated
Damages Amount, as applicable, accrued with respect to any Security or portion
thereof redeemed by the Company on a redemption date, purchased by the Company
on a repurchase date or converted into Underlying Common Stock on a conversion
date prior to the Interest Payment Date, shall, in any such event, be paid
instead to the Holder who submitted such Security or portion thereof for
redemption, purchase or conversion on the applicable redemption date, repurchase
date or conversion date, as the case may be, on such date (or promptly following
the conversion date, in the case of conversion), unless the redemption date
or
the repurchase date, as the case may be, falls after February 1 or August
1 and
on or prior to the corresponding Interest Payment Date; and PROVIDED FURTHER,
that, in the case of an Event of the type described in clause (iii) or (iv)
of
the first paragraph of this Section 2(e) such Additional Interest Amount
or
Liquidated Damages Amount shall be paid only to the Holders entitled thereto
by
check mailed to the address set forth in the Notice and Questionnaire delivered
by such Holder. The Trustee shall be entitled, on behalf of registered holders
of Securities or Underlying Common Stock, to seek any available remedy for
the
enforcement of this Agreement, including for the payment of such Additional
Interest Amount or Liquidated Damages Amount. Notwithstanding the foregoing,
the
parties agree that the sole damages payable for a violation of the terms
of this
Agreement with respect to which additional interest or liquidated damages
are
expressly provided shall be such additional interest or liquidated damages.
Nothing shall preclude any Holder from pursuing or obtaining specific
performance or other equitable relief with respect to this
Agreement.
All
of
the Company’s obligations set forth in this Section 2(e) that are outstanding
with respect to any Registrable Security at the time such security ceases
to be
a Registrable Security shall survive until such time as all such obligations
with respect to such security have been satisfied in full (notwithstanding
termination of this Agreement pursuant to Section 8(k)).
The
parties hereto agree that the additional interest or liquidated damages provided
for in this Section 2(e) constitute a reasonable estimate of the damages
that
may be incurred by Holders of Registrable Securities by reason of the failure
of
a Shelf Registration Statement to be filed or declared effective or available
for effecting resales of Registrable Securities in accordance with the
provisions hereof.
Section
3. REGISTRATION
PROCEDURES. In connection with the registration obligations of the Company
under
Section 2 hereof, the Company shall:
(a)
Before filing any Shelf Registration Statement or Prospectus or any amendments
or supplements thereto with the SEC, furnish to the Initial Purchasers and
the
Special Counsel of such offering, if any, copies of all such documents proposed
to be filed at least three Business Days prior to the filing of such Shelf
Registration Statement or amendment thereto or Prospectus or supplement
thereto.
(b)
Subject to Section 3(h) prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement as may be
necessary to keep such Shelf Registration Statement continuously effective
during the Effectiveness Period; cause the related Prospectus to be supplemented
by any required prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and use its best efforts to comply with the provisions of
the
Securities Act applicable to it with respect to the disposition of all
securities covered by such Shelf Registration Statement during the Effectiveness
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.
(c)
As promptly as practicable give notice to the Notice Holders, the Initial
Purchasers and the Special Counsel, (i) when any Prospectus, prospectus
supplement, Shelf Registration Statement or post-effective amendment to a
Shelf
Registration Statement has been filed with the SEC and, with respect to a
Shelf
Registration Statement or any post-effective amendment, when the same has
been
declared effective, (ii) of any request, following the effectiveness of the
initial Shelf Registration Statement under the Securities Act, by the SEC
or any
other federal or state governmental authority for amendments or supplements
to
any Shelf Registration Statement or related Prospectus or for additional
information, (iii) of the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the effectiveness of
any
Shelf Registration Statement or the initiation or threatening of any proceedings
for that purpose, (iv) of the receipt by the Company of any notification
with
respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (v) of the
occurrence of, but not the nature of or details concerning, a Material Event
and
(vi) of the determination by the Company that a post-effective amendment
to a
Shelf Registration Statement will be filed with the SEC, which notice may,
at
the discretion of the Company (or as required pursuant to Section 3(h)) state
that it constitutes a Deferral Notice, in which event the provisions of Section
3(h) shall apply.
(d)
Use its best efforts to obtain the withdrawal of any order suspending the
effectiveness of a Shelf Registration Statement or the lifting of any suspension
of the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction in which they have been qualified
for
sale, in either case at the earliest possible moment, and provide immediate
notice to each Notice Holder and the Initial Purchasers of the withdrawal
of any
such order.
(e)
As promptly as practicable furnish to each Notice Holder, the Special Counsel
and the Initial Purchasers, upon request and without charge, at least one
conformed copy of each Shelf Registration Statement and any amendment thereto,
including exhibits and all documents incorporated or deemed to be incorporated
therein by reference.
(f)
During the Effectiveness Period, deliver to each Notice Holder, the Special
Counsel, if any, and the Initial Purchasers, in connection with any sale
of
Registrable Securities pursuant to a Shelf Registration Statement, without
charge, as many copies of the Prospectus relating to such Registrable Securities
(including each preliminary prospectus) and any amendment or supplement thereto
as such Notice Holder may reasonably request; and the Company hereby consents
(except during such periods that a Deferral Notice is outstanding and has
not
been revoked) to the use of such Prospectus or each amendment or supplement
thereto by each Notice Holder in connection with any offering and sale of
the
Registrable Securities covered by such Prospectus or any amendment or supplement
thereto in the manner set forth therein.
(g)
Prior to any public offering of the Registrable Securities pursuant to a
Shelf
Registration Statement, use its best efforts to register or qualify or cooperate
with the Notice Holders and the Special Counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States
as
any Notice Holder reasonably requests in writing (which request may be included
in the Notice and Questionnaire); prior to any public offering of the
Registrable Securities pursuant to a Shelf Registration Statement, use its
best
efforts to keep each such registration or qualification (or exemption therefrom)
effective during the Effectiveness Period in connection with such Notice
Holder’s offer and sale of Registrable Securities pursuant to such registration
or qualification (or exemption therefrom) and do any and all other acts or
things reasonably necessary or advisable to enable the disposition in such
jurisdictions of such Registrable Securities in the manner set forth in the
Shelf Registration Statement and the related Prospectus; PROVIDED that the
Company will not be required to (i) qualify as a foreign corporation or as
a
dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Agreement or (ii) take any action that would
subject it to general service of process in suits or to taxation in any such
jurisdiction where it is not then so subject.
(h)
Upon (A) the issuance by the SEC of a stop order suspending the effectiveness
of
a Shelf Registration Statement or the initiation of proceedings with respect
to
a Shelf Registration Statement under Section 8(d) or 8(e) of the Securities
Act,
(B) the occurrence of any event or the existence of any fact (a “MATERIAL
EVENT”) as a result of which a Shelf Registration Statement shall contain any
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 not misleading,
or any Prospectus shall contain any 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 the light of the circumstances under which they
were
made, not misleading, or (C) the occurrence or existence of any pending
corporate development that, in the reasonable discretion of the Company,
makes
it appropriate to suspend the availability of a Shelf Registration Statement
and
the related Prospectus:
(i)
in the case of clause (B) above, as promptly as practicable prepare and file,
if
necessary pursuant to applicable law, a post-effective amendment to such
Shelf
Registration Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required document that
would
be incorporated by reference into such Shelf Registration Statement and
Prospectus so that such Shelf Registration Statement does not contain any
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 not misleading,
and
such Prospectus does not contain any 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 the light of the circumstances under which they
were
made, not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Shelf Registration Statement, use its best
efforts
to cause it to be declared effective as promptly as is practicable,
and
(ii)
give notice to the Notice Holders, and the Special Counsel, if any, that
the
availability of a Shelf Registration Statement is suspended (a “DEFERRAL
NOTICE”).
The
Company will use its best efforts to ensure that the use of the Prospectus
may
be resumed (x) in the case of clause (A) above, as promptly as is practicable,
(y) in the case of clause (B) above, as soon as, in the sole judgment of
the
Company, public disclosure of such Material Event would not be prejudicial
to or
contrary to the interests of the Company or, if necessary to avoid unreasonable
burden or expense, as soon as practicable thereafter and (z) in the case
of
clause (C) above, as soon as in the reasonable discretion of the Company,
such
suspension is no longer appropriate. The Company shall be entitled to exercise
its right under this Section 3(h) to suspend the availability of a Shelf
Registration Statement or any Prospectus, without incurring or accruing any
obligation to pay additional interest or liquidated damages pursuant to Section
2(e), no more than once in any three month period or three times in any twelve
month period, and any such period during which the availability of the Shelf
Registration Statement and any Prospectus is suspended (the “DEFERRAL PERIOD”)
shall, without incurring any obligation to pay additional interest or liquidated
damages pursuant to Section 2(e), not exceed 30 days; PROVIDED that the
aggregate duration of any Deferral Periods shall not exceed 30 days in any
three
month period (or 60 days in any three month period in the event of a Material
Event pursuant to which the Company has delivered a second notice as required
below) or 90 days in any 12 month period; PROVIDED that in the case of a
Material Event relating to an acquisition or a probable acquisition or
financing, recapitalization, business combination or other similar transaction,
the Company may, without incurring any obligation to pay additional interest
or
liquidated damages pursuant to Section 2(e), deliver to Notice Holders a
second
notice to the effect set forth above, which shall have the effect of extending
the Deferral Period by up to an additional 30 days, or such shorter period
of
time as is specified in such second notice.
(i)
If requested in writing in connection with a disposition of Registrable
Securities pursuant to a Shelf Registration Statement, make reasonably available
for inspection during normal business hours by a representative for the Notice
Holders of such Registrable Securities, any broker-dealers, attorneys and
accountants retained by such Notice Holders, and any attorneys or other agents
retained by a broker-dealer engaged by such Notice Holders, all relevant
financial and other records and pertinent corporate documents and properties
of
the Company and its subsidiaries, and cause the appropriate officers, directors
and employees of the Company and its subsidiaries to make reasonably available
for inspection during normal business hours on reasonable notice all relevant
information reasonably requested by such representative for the Notice Holders,
or any such broker-dealers, attorneys or accountants in connection with such
disposition, in each case as is customary for similar “due diligence”
examinations; PROVIDED that such persons shall first agree in writing with
the
Company that any non-public information shall be used solely for the purposes
of
satisfying “due diligence” obligations under the Securities Act and exercising
rights under this Agreement and shall be kept confidential by such persons,
unless (i) disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory authorities,
(ii) in
the opinion of Special Counsel, disclosure of such information is required
by
law (including any disclosure requirements pursuant to federal securities
laws
in connection with the filing of any Shelf Registration Statement or the
use of
any prospectus referred to in this Agreement), (iii) such information becomes
generally available to the public other than as a result of a disclosure
or
failure to safeguard by any such person or (iv) such information becomes
available to any such person from a source other than the Company and such
source is not bound by a confidentiality agreement, and PROVIDED FURTHER
that
the foregoing inspection and information gathering shall, to the greatest
extent
possible, be coordinated on behalf of all the Notice Holders and the other
parties entitled thereto by the Special Counsel. Any person legally compelled
to
disclose any such confidential information made available for inspection
shall
provide the Company with prompt prior written notice of such requirement
so that
the Company may seek a protective order or other appropriate
remedy.
(j)
Comply with all applicable rules and regulations of the SEC and make generally
available to its securityholders earning statements (which need not be audited)
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158
thereunder (or any similar rule promulgated under the Securities Act) for
a
12-month period commencing on the first day of the first fiscal quarter of
the
Company commencing after the effective date of a Shelf Registration Statement,
which statements shall be made available no later than 45 days after the
end of
the 12-month period or 90 days if the 12-month period coincides with the
fiscal
year of the Company.
(k) Cooperate
with each Notice Holder to facilitate the timely preparation and delivery
of
certificates representing Registrable Securities sold or to be sold pursuant
to
a Shelf Registration Statement, which certificates shall not bear any
restrictive legends, and cause such Registrable Securities to be in such
denominations as are permitted by the Indenture and registered in such names
as
such Notice Holder may request in writing at least one Business Day prior
to any
sale of such Registrable Securities.
(l)
Provide a CUSIP number for all Registrable Securities covered by each Shelf
Registration Statement not later than the effective date of such Shelf
Registration Statement and provide the Trustee and the transfer agent for
the
Common Stock with printed certificates for the Registrable Securities that
are
in a form eligible for deposit with The Depository Trust Company.
(m) Cooperate
and assist in any filings required to be made with the National Association
of
Securities Dealers, Inc.
(n) Upon
(i) the filing
of the initial Shelf Registration Statement and (ii) the effectiveness of
the
initial Shelf Registration Statement, announce the same, in each case by
release
to Reuters Economic Services and Bloomberg Business News.
Section
4. HOLDER’S OBLIGATIONS.
(a) Each Holder agrees, by acquisition of the Registrable Securities, that
no Holder shall be entitled to sell any of such Registrable Securities pursuant
to a Shelf Registration Statement or to receive a Prospectus relating thereto,
unless such Holder has furnished the Company with a Notice and Questionnaire
as
required pursuant to Section 2(d) hereof (including the information required
to
be included in such Notice and Questionnaire) and the information set forth
in
the next sentence. Each Notice Holder agrees promptly to furnish to the Company
all information required to be disclosed in order to make the information
previously furnished to the Company by such Notice Holder not misleading
and any
other information regarding such Notice Holder and the distribution of such
Registrable Securities as the Company may from time to time reasonably request.
Any sale of any Registrable Securities by any Holder shall constitute a
representation and warranty by such Holder that the information relating
to such
Holder and its plan of distribution is as set forth in the Prospectus delivered
by such Holder in connection with such disposition, that such Prospectus
does
not as of the time of such sale contain any untrue statement of a material
fact
relating to or provided by such Holder or its plan of distribution and that
such
Prospectus does not as of the time of such sale omit to state any material
fact
relating to or provided by such Holder or its plan of distribution necessary
to
make the statements in such Prospectus, in the light of the circumstances
under
which they were made, not misleading.
(b)
Upon receipt of any Deferral Notice, each Notice Holder agrees not to sell
any
Registrable Securities pursuant to any Shelf Registration Statement until
such
Notice Holder’s receipt of copies of the supplemented or amended Prospectus
provided for in Section 3(h)(i), or until it is advised in writing by the
Company that the Prospectus may be used.
Section
5. REGISTRATION
EXPENSES. The Company shall bear all fees and expenses incurred in connection
with the performance by the Company of its obligations under Sections 2 and
3 of
this Agreement whether or not any Shelf Registration Statement is declared
effective. Such fees and expenses shall include, without limitation, (i)
all
registration and filing fees (including, without limitation, fees and expenses
(x) with respect to filings required to be made with the National Association
of
Securities Dealers, Inc. and (y) of compliance with federal and state securities
or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of the Special Counsel in connection with Blue Sky qualifications
of the Registrable Securities under the laws of such jurisdictions as Notice
Holders of a majority of the Registrable Securities being sold pursuant to
a
Shelf Registration Statement may designate), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable Securities
in a form eligible for deposit with The Depository Trust Company), (iii)
duplication expenses relating to copies of any Shelf Registration Statement
or
Prospectus delivered to any Holders hereunder, (iv) fees and disbursements
of
counsel for the Company in connection with any Shelf Registration Statement,
(v)
reasonable fees and disbursements of the Trustee and its counsel and of the
registrar and transfer agent for the Common Stock, (vi) Securities Act liability
insurance obtained by the Company in its sole discretion and (vii) the fees
and
disbursements of Special Counsel. In addition, the Company shall pay the
internal expenses of the Company (including, without limitation, all salaries
and expenses of officers and employees performing legal or accounting duties),
the expense of any annual audit, the fees and expenses incurred in connection
with the listing by the Company of the Registrable Securities on any securities
exchange on which similar securities of the Company are then listed and the
fees
and expenses of any person, including special experts, retained by the Company.
Notwithstanding the provisions of this Section 5, each seller of Registrable
Securities shall pay any broker’s commission, agency fee or underwriter’s
discount or commission in connection with the sale of the Registrable Securities
under a Shelf Registration Statement.
Section
6. INDEMNIFICATION AND
CONTRIBUTION.
(a)
INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify and hold
harmless each Notice Holder, each person, if any, who controls any Notice
Holder
within the meaning of either Section 15 of the Securities Act or Section
20 of
the Exchange Act, and each affiliate of any Notice Holder within the meaning
of
Rule 405 under the Securities Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating
any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in any Shelf Registration Statement or any
amendment thereof, any preliminary prospectus or any Prospectus (as amended
or
supplemented if the Company shall have furnished any amendments or supplements
thereto), caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims, damages or liabilities
are caused by any such untrue statement or omission or alleged untrue statement
or omission based upon information relating to any Holder furnished to the
Company in writing by such Holder expressly for use therein; PROVIDED that
the
foregoing indemnity shall not inure to the benefit of any Holder (or to the
benefit of any person controlling such Holder) from whom the person asserting
such losses, claims or liabilities purchased the Registrable Securities,
if a
copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given
by
or on behalf of such Holder to such person, if required by law so to have
been
delivered at or prior to the written confirmation of the sale of the Registrable
Securities to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages or
liabilities, unless such failure is the result of noncompliance by the Company
with Section 2(c) hereof.
(b)
INDEMNIFICATION BY HOLDERS. Each Holder agrees severally and not jointly
to
indemnify and hold harmless the Company and its directors, its officers and
each
person, if any, who controls the Company (within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act) or any other
Holder,
to the same extent as the foregoing indemnity from the Company to such Holder,
but only with reference to information relating to such Holder furnished
to the
Company in writing by such Holder expressly for use in such Shelf Registration
Statement or Prospectus or amendment or supplement thereto. In no event shall
the liability of any Holder hereunder be greater in amount than the dollar
amount of the proceeds received by such Holder upon the sale of the Registrable
Securities pursuant to the Shelf Registration Statement giving rise to such
indemnification obligation.
(c)
CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any proceeding (including
any
governmental investigation) shall be instituted involving any person in respect
of which indemnity may be sought pursuant to Section 6(a) or 6(b) hereof,
such
person (the “INDEMNIFIED PARTY”) shall promptly notify the person against whom
such indemnity may be sought (the “INDEMNIFYING PARTY”) in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and
shall pay the reasonable fees and disbursements of such counsel related to
such
proceeding. In any such proceeding, any indemnified party shall have the
right
to retain its own counsel, but the fees and expenses of such counsel shall
be at
the expense of such indemnified party unless (i) the indemnifying party and
the
indemnified party shall have mutually agreed to the retention of such counsel
or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual
or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings
in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by, in the case of parties
indemnified pursuant to Section 6(a), the Holders of a majority (with Holders
of
Securities deemed to be the Holders, for purposes of determining such majority,
of the number of shares of Underlying Common Stock into which such Securities
are or would be convertible as of the date on which such designation is made)
of
the Registrable Securities covered by the Shelf Registration Statement held
by
Holders that are indemnified parties pursuant to Section 6(a) and, in the
case
of parties indemnified pursuant to Section 6(b), the Company. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any
time
an indemnified party shall have requested an indemnifying party to reimburse
the
indemnified party for fees and expenses of counsel as contemplated by the
second
and third sentences of this paragraph, the indemnifying party agrees that
it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days
after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have
been
sought hereunder by such indemnified party, unless such settlement includes
an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d)
CONTRIBUTION. To the extent that the indemnification provided for in Section
6(a) or 6(b) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable
by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and
the
indemnified party or parties on the other hand or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the indemnifying party
or
parties on the one hand and of the indemnified party or parties on the other
hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company shall be deemed
to
be equal to the total net proceeds from the initial placement pursuant to
the
Purchase Agreement (before deducting expenses) of the Registrable Securities
to
which such losses, claims, damages or liabilities relate. The relative benefits
received by any Holder shall be deemed to be equal to the value of receiving
registration rights under this Agreement for the Registrable Securities.
The
relative fault of the Holders on the one hand and the Company on the other
hand
shall be determined by reference to, among other things, 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 Holders or
by
the Company, and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Holders’
respective obligations to contribute pursuant to this Section 6(d) are several
in proportion to the respective number of Registrable Securities they have
sold
pursuant to a Shelf Registration Statement, and not joint.
The
parties hereto agree that it would not be just and equitable if 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 immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the immediately preceding paragraph
shall
be deemed to include, subject to the limitations set forth above, any legal
or
other expenses reasonably incurred by such indemnified party in connection
with
investigating or defending any such action or claim. Notwithstanding this
Section 6(d), no indemnifying party that is a selling Holder shall be required
to contribute any amount in excess of the amount by which the total price
at
which the Registrable Securities sold by it and distributed to the public
were
offered to the public exceeds the amount of any damages that such indemnifying
party has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e)
The remedies provided for in this Section 6 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to an indemnified
party at law or in equity, hereunder, under the Purchase Agreement or
otherwise.
(f)
The indemnity and contribution provisions contained in this Section 6 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any Holder,
any person controlling any Holder or any affiliate of any Holder or by or
on
behalf of the Company, its officers or directors or any person controlling the
Company and (iii) the sale of any Registrable Securities by any
Holder.
Section
7. INFORMATION
REQUIREMENTS. The Company covenants that, if at any time before the end of
the
Effectiveness Period, the Company is not subject to the reporting requirements
of the Exchange Act, it will cooperate with any Holder and take such further
reasonable action as any Holder may reasonably request in writing (including,
without limitation, making such reasonable representations as any such Holder
may reasonably request), all to the extent required from time to time to
enable
such Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144
and
Rule 144A under the Securities Act and customarily taken in connection with
sales pursuant to such exemptions. Upon the written request of any Holder,
the
Company shall deliver to such Holder a written statement as to whether it
has
complied with such filing requirements, unless such a statement has been
included in the Company’s most recent report filed pursuant to Section 13 or
Section 15(d) of Exchange Act. Notwithstanding the foregoing, nothing in
this
Section 7 shall be deemed to require the Company to register any of its
securities (other than the Common Stock) under the Exchange Act.
Section
8. MISCELLANEOUS.
(a)
NO CONFLICTING AGREEMENTS. The Company is not, as of the date hereof, a party
to, nor shall it, on or after the date of this Agreement, enter into, any
agreement with respect to its securities that conflicts with the rights granted
to the Holders in this Agreement. The Company represents and warrants that
the
rights granted to the Holders hereunder do not in any way conflict with the
rights granted to the holders of the Company’s securities under any other
agreements.
(b)
AMENDMENTS AND WAIVERS. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented,
and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of Holders of a majority
of
the then outstanding Underlying Common Stock constituting Registrable Securities
(with Holders of Securities deemed to be the Holders, for purposes of this
Section, of the number of outstanding shares of Underlying Common Stock into
which such Securities are or would be convertible as of the date on which
such
consent is requested). Notwithstanding the foregoing, a waiver or consent
to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders whose securities 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 Holders of at least a majority
of
the Registrable Securities being sold by such Holders pursuant to such Shelf
Registration Statement; PROVIDED that the provisions of this sentence may
not be
amended, modified or supplemented except in accordance with the provisions
of
the immediately preceding sentence. Notwithstanding the foregoing sentence,
this
Agreement may be amended by written agreement signed by the Company and the
Initial Purchasers, without the consent of the Holders of Registrable
Securities, to cure any ambiguity or to correct or supplement any provision
contained herein that may be defective or inconsistent with any other provision
contained herein, or to make such other provisions in regard to matters or
questions arising under this Agreement that shall not adversely affect the
interests of the Holders of Registrable Securities. Each Holder of Registrable
Securities outstanding at the time of any such amendment, modification,
supplement, waiver or consent or thereafter shall be bound by any such
amendment, modification, supplement, waiver or consent effected pursuant
to this
Section 8(b) whether or not any notice, writing or marking indicating such
amendment, modification, supplement, waiver or consent appears on the
Registrable Securities or is delivered to such Holder.
(c)
NOTICES. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand delivery, by telecopier, by courier
or by first-class mail, return receipt requested, and shall be deemed given
(i)
when made, if made by hand delivery, (ii) upon confirmation, if made by
telecopier, (iii) one Business Day after being deposited with such courier,
if
made
by overnight courier or (iv) on the date indicated on the notice of receipt,
if
made by first-class mail, to the parties as follows:
(i)
if to a Holder, at the most current address given by such Holder to the Company
in a Notice and Questionnaire or any amendment thereto;
(ii)
if to the Company, to:
Xxxxxx
Corporation
00000
Xxxx 000xx Xxxxxx
Xxxxxx
Xxxx, Xxxxxxxx 00000
Attention:
Secretary
Telecopy
No.: (000) 000-0000
with
a
copy to:
Xxxxxxx
Xxxxxx & Xxxxxxx LLC
000
X.
Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000-0000
Attention:
Xxxxx X. Xxxxxxxx
Telecopy
No.: (000) 000-0000
(iii)
if to the Initial Purchasers, to:
Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx
Attention:
Equity Capital Markets
Telecopy
No.: (000) 000-0000
Banc
of
America Securities LLC
0
X. 00xx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx
Attention:
Xxxxx Xxxxxx or Xxxxxx Xxxxxxx, Capital Markets
Telecopy
No.: (000) 000-0000
Citigroup
Global Markets Inc.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
General Counsel
Telecopy
No.: (000) 000 0000
or
to
such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d)
APPROVAL OF HOLDERS. Whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Company or its affiliates (as such term is defined
in
Rule 405 under the Securities Act) (other than the Initial Purchasers or
subsequent Holders if such subsequent Holders are deemed to be such affiliates
solely by reason of their holdings of such Registrable Securities) shall
not be
counted in determining whether such consent or approval was given by the
Holders
of such required percentage.
(e)
SUCCESSORS AND ASSIGNS. Any person who purchases any Registrable Securities
from
the Initial Purchasers shall be deemed, for purposes of this Agreement, to
be an
assignee of the Initial Purchasers. This Agreement shall inure to the benefit
of
and be binding upon the successors and assigns of each of the parties and
shall
inure to the benefit of and be binding upon each Holder of any Registrable
Securities, PROVIDED that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Registrable Securities in violation
of the terms of the Indenture. If any transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of
this
Agreement, and by taking and holding such Registrable Securities, such person
shall be conclusively deemed to have agreed to be bound by and to perform
all of
the terms and provisions of this Agreement and such person shall be entitled
to
receive the benefits hereof.
(f)
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 original and all of which taken together shall constitute
one and the same agreement.
(g)
HEADINGS. The headings in this Agreement are for convenience of reference
only
and shall not limit or otherwise affect the meaning hereof.
(h)
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
(i)
SEVERABILITY. If any term, provision, covenant or restriction of this Agreement
is held to be invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall remain
in
full force and effect and shall in no way be affected, impaired or invalidated
thereby, and the parties hereto shall use their best efforts to find and
employ
an alternative means to achieve the same or substantially the same result
as
that contemplated by such term, provision, covenant or restriction, it being
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(j)
ENTIRE AGREEMENT. This Agreement is intended by the parties as a final
expression of their agreement and is 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 and the registration rights granted by
the
Company with respect to the Registrable Securities. Except as provided in
the
Purchase Agreement, 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 Registrable
Securities. This Agreement supersedes all prior agreements and undertakings
among the parties with respect to such registration rights. No party hereto
shall have any rights, duties or obligations other than those specifically
set
forth in this Agreement. In no event will such methods of distribution take
the
form of an underwritten offering of the Registrable Securities without the
prior
agreement of the Company.
(k)
TERMINATION. This Agreement and the obligations of the parties hereunder
shall
terminate upon the end of the Effectiveness Period, except for any liabilities
or obligations under Section 4, 5 or 6 hereof and the obligations to make
payments of and provide for additional interest or liquidated damages under
Section 2(e) hereof to the extent such damages accrue prior to the end of
the
Effectiveness Period, each of which shall remain in effect in accordance
with
its terms.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
written above.
|
XXXXXX
CORPORATION
|
|||
|
|
By:
|
/s/ M. Xxxxxxx Xxxxxxxxx | |
| Name: M. Xxxxxxx Xxxxxxxxx | |||
| Title: Vice President & Treasurer | |||
|
Confirmed
and accepted as of
the date first above written, severally and as representatives of the several Initial Purchasers: |
| XXXXXX XXXXXXX & CO. INCORPORATED | ||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx | ||
| Title: Managing Director | ||
| BANC OF AMERICA SECURITIES LLC | ||
|
By:
|
/s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | ||
| Title: Managing Director | ||
| CITIGROUP GLOBAL MARKETS INC. | ||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: Vice President | ||
