Exhibit 4.5
GATX CORPORATION
7.5% Convertible Senior Notes due 2007
Fully and Unconditionally Guaranteed
by
GATX Financial Corporation
REGISTRATION RIGHTS AGREEMENT
New York, New York
February 1, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
X.X. Xxxxxx Securities Inc.
As Representatives of the Initial Purchasers
Named in Schedule I to the Purchase Agreement
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
GATX Corporation, a New York 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 28, 2002 (the "Purchase
Agreement"), $150,000,000 aggregate principal amount (plus up to an additional
$25,000,000 aggregate principal amount to cover over-allotments, if any) of its
7.5% Convertible Senior Notes due 2007 (the "Notes"). GATX Financial
Corporation, a Delaware corporation (the "Guarantor"), will fully and
unconditionally guarantee the Notes (the "Guarantee" and, together with the
Notes, the "Securities").
The Securities will be convertible into shares of Common Stock (as defined
herein), 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 (as defined herein).
As an inducement to you to enter into the Purchase Agreement and in
satisfaction of a condition to your obligations thereunder, the Issuers (as
defined herein) agree with you, (i) for your benefit and (ii) for the benefit of
the holders from time to time of the Securities and the Common Stock issuable
upon conversion of the Notes (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 such person,
whether through the ownership of voting securities or by agreement or otherwise.
"Broker-Dealer" means any broker or dealer registered as such under the
Exchange Act.
"Business Day" has the meaning set forth in the Indenture.
"Closing Date" means February 1, 2002.
"Common Stock" means the common stock, par value $.625 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 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 Notes.
"Damages Payment Date" means, with respect to the Securities or the Common
Stock issuable upon conversion of the Notes, as applicable, each Interest
Payment Date; and in the event that any Security, or portion thereof, is
surrendered for purchase by the Company and not withdrawn pursuant to a
Fundamental Change Offer (as defined in the Indenture), the relevant Fundamental
Change 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 repurchased, as the case may be, is to be
paid to the person who was the Record Holder thereof on a record date prior to
such Fundamental Change Payment Date, as the case may be, in which case the
relevant Damages Payment Date shall be the date on which interest is payable to
such Record Holder.
"Default Rate" means the rate of interest payable with respect to overdue
amounts on the Securities pursuant to Section 4.1 of the Indenture.
"DTC" means The Depository Trust Company.
"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, 2007.
"Holder" means a person who is a holder or beneficial owner (including the
Initial Purchasers) of any Securities or shares of Common Stock issued upon
conversion of Notes;
-2-
provided that, unless otherwise expressly stated herein, only registered holders
of Securities or Common Stock issued on conversion of the Notes 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
February 1, 2002, among the Company, the Guarantor and JPMorgan Chase Bank, 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 February 1 and August 1.
"Issuers" means, collectively, the Company and the Guarantor.
"Liquidated Damages" has the meaning set forth in Section 2(e) hereof.
"Losses" has the meaning set forth in Section 5(d) hereof.
"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 Common Stock issued upon conversion of Notes
shall be deemed to be Holders of the aggregate principal amount of Securities
from which such Common Stock was converted; and provided, further, that
Securities or 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 Common Stock issued upon conversion of the Notes shall be deemed
to be Holders of the aggregate principal amount of Securities from which such
Common Stock was converted.
"Managing Underwriters" means the Underwriter or Underwriters that shall
administer an Underwritten Offering.
"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.
"Notice Holder" shall mean, on any date, any Holder of Transfer Restricted
Securities that has delivered a completed and signed Notice and Questionnaire to
the Company on or prior to such date.
-3-
"Offering Memorandum" means the Final Memorandum as defined in the Purchase
Agreement.
"Person" has 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 Common Stock issuable upon
conversion of the Notes 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 Common Stock issued upon conversion of
the Notes, each person who is a holder of record of such Common Stock fifteen
days prior to the Damages Payment Date.
"Registration Default" has the meaning set forth in Section 2(e) hereof.
"Representative" has the meaning set forth in the preamble hereto.
"Rule 144" means Rule 144 (or any successor provision) under the Act.
"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 filed pursuant to the provisions of Section 2 hereof which covers
some or all of the Securities and the Common Stock issuable upon conversion of
the Notes, 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.
-4-
"Transfer Restricted Securities" means each Security and each share of
Common Stock issuable or issued upon conversion of the Notes until the date on
which such Security or share of 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 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 the Securities or Common Stock
issuable upon conversion of the Notes in connection with an offering thereof
under a Shelf Registration Statement.
"Underwritten Offering" means an offering in which the Securities or
Common Stock issued upon conversion of the Notes 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 any
document filed with the SEC 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.
2. Shelf Registration Statement.
----------------------------
(a) The Issuers shall prepare and file with the SEC within 90 days
following the Closing Date a Shelf Registration Statement with respect to
resales of the Transfer Restricted Securities 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 (subject to Section
3(u)) and thereafter shall use their reasonable best efforts to cause such
Shelf Registration Statement to be declared effective under the Act within
150 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 Issuers will take such steps,
prior to the effective date of the Shelf Registration Statement, to ensure
that such Securities and Common Stock issuable upon conversion of the Notes
are included in the Shelf Registration Statement on the same terms as the
Securities issued on the Closing Date. The Issuers shall supplement or
amend the Shelf Registration
-5-
Statement if required by the rules, regulations or instructions applicable
to the registration form used by the Issuers for the Shelf Registration
Statement, or by the Act, the Exchange Act or the SEC.
(b) (i) Not less than 30 calendar days prior to the effectiveness
of the Shelf Registration Statement, the Issuers shall mail the Notice
and Questionnaire to the Holders of Transfer Restricted Securities.
The Issuers shall take action to name each Holder that is a Notice
Holder as of the date that is 10 calendar days prior to the
effectiveness of the Shelf Registration Statement so that such Holder
is named as a selling security holder in the Shelf Registration
Statement at the time of its effectiveness and is permitted to deliver
the Prospectus forming a part thereof as of such time to purchasers of
such Holder's Transfer Restricted Securities in accordance with
applicable law. The Issuers shall be under no obligation to name any
Holder that is not a Notice Holder as a selling security holder in the
Shelf Registration Statement.
(ii) After the Shelf Registration Statement has become effective,
the Issuers shall, upon the request of any Holder of Transfer
Restricted Securities, promptly send a Notice and Questionnaire to
such Holder. From and after the date on which the Shelf Registration
Statement has become effective, the Issuers shall (i) as promptly as
is practicable after the date a completed and signed Notice and
Questionnaire and such other information as the Issuers may reasonably
request is delivered to the Issuers, and in any event within five
Business Days after such date, prepare and file with the SEC (x) a
supplement to the Prospectus or, if required by applicable law, a
post-effective amendment to the Shelf Registration Statement and (y)
any other document required by applicable law, so that the Holder
delivering such Notice and Questionnaire is named as a selling
security holder in the Shelf Registration Statement and is permitted
to deliver the Prospectus to purchasers of such Holder's Transfer
Restricted Securities in accordance with applicable law, and (ii) use
their reasonable best efforts to cause any such post-effective
amendment to become effective under the Act as promptly as is
practicable; provided, however, that if a Notice and Questionnaire is
delivered to the Issuers during a Suspension Period, the Issuers shall
not be obligated to take the actions set forth in clauses (i) and (ii)
until the termination of such Suspension Period.
(c) The Issuers shall use their reasonable best efforts to keep the
Shelf Registration Statement continuously effective under the Act in order
to permit the Prospectus forming a part thereof to be usable, subject to
Section 2(d), by all Notice Holders until the earliest of (i) the second
anniversary of the Closing Date, (ii) the date on which all the Securities
or Common Stock issued or issuable upon conversion of the Notes may be sold
by non-affiliates ("affiliates" for such purpose having the meaning set
forth in Rule 144) of the Issuers 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 or Common Stock issued or issuable upon
conversion of the Notes have been transferred pursuant to Rule 144 under
the Act (or any similar provision then in force) and (iv) such date as of
which all the Securities or the Common Stock issued or issuable
-6-
upon conversion of the Notes have been sold pursuant to the Shelf
Registration Statement (in any such case, such period being called the
"Shelf Registration Period").
The Issuers will, (x) 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, (y) 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 (z) 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 Issuers may suspend the use of the Prospectus for a
period not to exceed 30 days in any three-month period or for three
periods not to exceed an aggregate of 60 days in any 12-month period
(the "Suspension Period") for valid business reasons, to be determined
by the Issuers in their sole reasonable judgment (not including
avoidance of the Issuers' 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 Issuers promptly thereafter comply with the
requirements of Section 3(j) hereof, if applicable; provided, further,
that the existence of a Suspension Period will not prevent the
occurrence of a Registration Default or otherwise limit the obligation
of the Issuers to pay Liquidated Damages.
(e) If (i) the Shelf Registration Statement is not filed with the
SEC on or prior to 90 days after the Closing Date, (ii) the Shelf
Registration Statement has not been declared effective by the SEC
within 150 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 for the offer and sale of Transfer Restricted
Securities for a period of time (including any Suspension Period)
which shall exceed 60 days in the aggregate in any 12 month period
during the period beginning on 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 Issuers 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 or $2.50 per annum per
29.334 shares of 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 or $5.00 per annum per 29.334 shares of
Common Stock (subject to adjustment
-7-
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 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. Liquidated Damages shall cease
to accrue in respect of any Transfer Restricted Security when it shall
cease to be such. All accrued Liquidated Damages shall be paid by wire
transfer of immediately available funds or by federal funds check by the
Issuers 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 and the actual number of days elapsed in any partial month. 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 Issuers' 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 Issuers shall give the Trustee, in the case of
notice with respect to the Securities, and the transfer and paying agent
for the Common Stock, in the case of notice with respect to Common Stock
issued or issuable upon conversion of the Notes, notice of such
commencement or termination, of the obligation to pay Liquidated Damages
with regard to the Securities and 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) All Securities which are purchased or otherwise acquired by the
Issuers or any of their subsidiaries or affiliates (as defined in Rule 144
(or any successor provision) under the Act) prior to the Final Maturity
Date shall be delivered to the Trustee for cancellation and the Issuers may
not hold or resell such Securities or issue any new Securities to replace
any such Securities or any Securities that any Holder has converted
pursuant to the Indenture. All shares of Common Stock issued upon
conversion of the Notes which are repurchased or otherwise acquired by the
Issuers or any of their subsidiaries or affiliates (as defined in Rule 144
(or any successor provision) under the Act) at any time while such shares
are "restricted securities" within the meaning of Rule 144 shall not be
resold or otherwise transferred except pursuant to a registration statement
which has been declared effective under the Act.
-8-
3. Registration Procedures. In connection with any Shelf Registration
Statement, the following provisions shall apply:
(a) The Issuers shall:
(i) furnish to the Representatives, prior to the filing thereof
with the SEC, a copy of any Shelf Registration Statement, and each
amendment thereof, and a copy of any Prospectus, and each amendment or
supplement thereto (excluding amendments caused by the filing of a
report under the Exchange Act), and shall use their reasonable best
efforts to reflect in each such document, when so filed with the SEC,
such comments as the Representatives reasonably and promptly propose;
and
(ii) include information regarding the Notice Holders and the
methods of distribution they have elected for their Transfer
Restricted Securities provided to the Issuers in Notice and
Questionnaires as necessary to permit such distribution by the methods
specified therein.
(b) Subject to Section 2(d), the Issuers shall ensure that (i) any
Shelf Registration Statement and any amendment thereto and any Prospectus
forming a part thereof 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 a 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
Issuers make no representation with respect to information with respect to
any Underwriter or any Holder required to be included in any Shelf
Registration Statement 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 Issuers
in writing by such Underwriter or Holder.
(c) The Issuers, as promptly as reasonably practicable, shall advise
the Representatives and each Notice Holder 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 following effectiveness of the
Shelf Registration Statement for amendments or supplements to the
Shelf Registration Statement or the Prospectus or for additional
information (other than any such request relating to a review of the
Issuers' Exchange Act filings);
-9-
(iii) of the determination by the Issuers that a post-effective
amendment to the Shelf Registration Statement would be appropriate;
(iv) of the commencement or termination of (but not the nature of
or details concerning) any Suspension Period;
(v) 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;
(vi) of the receipt by the Issuers of any notification with
respect to the suspension of the qualification of the Transfer
Restricted Securities included in any Shelf Registration Statement for
sale in any jurisdiction or the initiation or threat of any proceeding
for such purpose;
(vii) of the happening of (but not the nature of or details
concerning) 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; and
(viii) of the Issuers' suspension of the use of the Prospectus as
a result of any of the events or circumstances described in paragraphs
(ii) through (vii) above, and of the termination of any such
suspension.
(d) The Issuers shall use their reasonable 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 Transfer
Restricted Securities for offer or sale in any jurisdiction at the earliest
possible time.
(e) The Issuers shall promptly furnish to each Notice Holder, without
charge, at least one copy of any Shelf Registration Statement and any
post-effective amendment thereto, including all exhibits (including those
incorporated by reference), financial statements and schedules.
(f) The Issuers shall, during the Shelf Registration Period, promptly
deliver to each Initial Purchaser, each Notice Holder and any sales or
placement agent or underwriters acting on their behalf, without charge, as
many copies of the Prospectus (including each preliminary Prospectus)
included in any Shelf Registration Statement (excluding documents
incorporated by reference), and any amendment or supplement thereto, as
such person may reasonably request; and, except as provided in Sections
2(d) and 3(s) hereof, the Issuers consent 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
-10-
of the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto.
(g) Prior to any offering of Transfer Restricted Securities pursuant
to any Shelf Registration Statement, the Issuers shall register or qualify
or cooperate with the Notice Holders and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Transfer Restricted Securities for
offer and sale, under the securities or blue sky laws of such jurisdictions
within the United States as any such Notice Holders reasonably request and
shall maintain such qualification in effect so long as required and do any
and all other acts or things necessary or advisable to enable the offer and
sale in such jurisdictions of the Transfer Restricted Securities covered by
such Shelf Registration Statement; provided, however, that the Issuers will
not be required to (A) qualify generally to do business as a foreign
corporation or as a dealer in securities in any jurisdiction where it is
not then so qualified or to (B) take any action which would subject it to
service of process or taxation in any such jurisdiction where it is not
then so subject.
(h) The Issuers shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities sold pursuant to any Shelf Registration Statement
free of any restrictive legends and in such denominations permitted by the
Indenture and registered in such names as Holders may request at least two
Business Days prior to settlement of sales of Transfer Restricted
Securities pursuant to such Shelf Registration Statement.
(i) Subject to the exceptions contained in (A) and (B) of Section 3(g)
hereof, the Issuers shall use their reasonable best efforts to cause the
Transfer Restricted Securities 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 Transfer Restricted
Securities as contemplated by the Shelf Registration Statement; without
limitation to the foregoing, the Issuers 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 Transfer Restricted Securities
(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 described in Section 3(c)(vii)
hereof, the Issuers shall as soon as reasonably practicable 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 Transfer Restricted Securities
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
-11-
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, use its reasonable best efforts to cause it
to become effective as promptly as practicable; provided that the Issuers'
obligations under this paragraph (j) shall be suspended if the Issuers have
suspended the use of the Prospectus in accordance with Section 2(d) hereof
and given notice of such suspension to Notice Holders, it being understood
that the Issuers' obligations under this Section 3(j) shall be
automatically reinstated at the end of such Suspension Period.
(k) The Issuers shall use their reasonable best efforts to provide, on
or prior to the first Business Day following the effective date of any
Shelf Registration Statement hereunder (i) a CUSIP number for the Transfer
Restricted Securities registered under such Shelf Registration Statement
and (ii) global certificates for such Transfer Restricted Securities to the
Trustee, in a form eligible for deposit with DTC.
(l) The Issuers shall use their 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 50 days after the end of a 12-month period (or 105 days, if
such period is a fiscal year) 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 Issuers 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 Issuers shall use their reasonable best efforts to cause the
Indenture to be qualified under the TIA (as defined in the Indenture) in a
timely manner.
(n) The Issuers shall cause all Common Stock issued or issuable upon
conversion of the Notes to be listed on each securities exchange or
quotation system on which the 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 Issuers may require each Holder of Transfer Restricted
Securities to be sold pursuant to any Shelf Registration Statement to
furnish to the Issuers such information regarding the Holder and the
distribution of such Transfer Restricted Securities 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 Issuers to any Holder hereunder
shall be expressly conditioned on the compliance of such Holder with such
request.
(p)The Issuers shall, if reasonably requested, use their reasonable
best efforts to promptly incorporate in a Prospectus supplement or
post-effective amendment to a
-12-
Shelf Registration Statement (i) such information as the Majority Holders
provide or, if Transfer Restricted Securities 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 the Issuers 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 Issuers in writing for inclusion in a Prospectus
or any Shelf Registration Statement concerning such Holder and the
distribution of such Holder's Transfer Restricted Securities and, in either
case, shall make all required filings of such Prospectus supplement or
post-effective amendment promptly after being notified in writing of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment, provided that the Issuers shall not be required to take any
action under this Section 3(p) that is not, in the reasonable opinion of
counsel for the Issuers, in compliance with applicable law.
(q) The Issuers shall enter into such customary agreements (including
underwriting agreements) and take all other appropriate actions as may be
requested in order to expedite or facilitate the registration or the
disposition of the Transfer Restricted Securities, 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 Transfer Restricted Securities to be made by selling
security holders through underwriters, brokers and dealers, and shall also
include such other information as the Representative may reasonably
request.
(r) The Issuers shall if reasonably requested in writing by Majority
Holders, by Majority Underwriting Holders or by the Managing Underwriter:
(i) make reasonably available for inspection during normal
business hours by any Underwriter participating in any disposition
pursuant to such Shelf Registration Statement, and any attorney,
accountant or other agent retained by any such Underwriter all
relevant financial and other records, pertinent corporate documents
and properties of the Issuers and their subsidiaries as is customary
for due diligence examinations in connection with public offerings;
(ii) cause the Issuers' officers, directors, employees,
accountants and auditors to supply all relevant information reasonably
requested by 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 Issuers, in good
faith, 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
-13-
has become available to the public generally through the Issuers or through
a third party without an accompanying obligation of confidentiality;
(iii) deliver a letter, addressed to the selling Holders and the
Underwriters, if any, in which the Company shall make such representations
and warranties in form, substance and scope as are customarily made by
issuers to Underwriters;
(iv) obtain opinions of counsel to the Issuers 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;
(v) obtain "cold comfort" letters and updates thereof from the current
and former independent certified public accountants of the Company and/or
the Guarantor (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or the Guarantor or of any
business acquired by the Company or the Guarantor for which financial
statements and financial data are, or are required to be, included in the
Shelf Registration Statement), addressed to each selling Holder (provided
such Holder furnishes the accountants, prior to the date such "cold
comfort" letter is required to be delivered, 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 or the Guarantor.
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 Notice Holder agrees that, upon receipt of notice of the happening
of an event described in Sections 3(c)(ii) through and including 3(c)(vii), each
Holder shall forthwith discontinue (and shall cause its agents and
representatives to discontinue) disposition of Transfer Restricted Securities
and will not resume disposition of Transfer Restricted Securities 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 or the Guarantor that the use of the Prospectus may be resumed or that
the relevant Suspension Period has been terminated, as the case may
-14-
be, provided that, the foregoing shall not prevent the sale, transfer or other
disposition of Transfer Restricted Securities by a Notice Holder in a
transaction which is exempt from, or not subject to, the registration
requirements of the Act, so long as such Notice 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 Section 3(s) shall not
prevent the occurrence of a Registration Default or otherwise limit the
obligation of the Issuers to pay Liquidated Damages.
(t) The Issuers shall in connection with an Underwritten Offering use their
reasonable best efforts (i) if the Securities have been rated prior to the
initial sale of such Securities, to confirm that such ratings will apply to the
Securities covered by the Shelf Registration Statement; or (ii) if the
Securities were not previously rated, to cause the Securities covered by the
Shelf Registration Statement to be rated with at least one nationally recognized
statistical rating agency, if so requested by the Majority Holders or by any
Managing Underwriters.
(u) In the event that any Broker-Dealer shall underwrite any Securities or
participate as a member of an underwriting syndicate or selling group or "assist
in the distribution" (within the meaning of the NASD Rules) thereof, whether as
a Holder of such Transfer Restricted Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or otherwise,
the Issuers shall assist such Broker-Dealer in complying with the NASD Rules,
including, without limitation, by:
(i) if the NASD Rules shall so require, engaging a "qualified
independent underwriter" (as defined in the NASD Rules) to participate in
the preparation of the Shelf Registration Statement, to exercise usual
standards of due diligence with respect thereto and, if any portion of the
offering contemplated by the Shelf Registration Statement is an
Underwritten Offering or is made through a placement or sales agent, to
recommend the price of such Transfer Restricted Securities;
(ii) indemnifying any such qualified independent underwriter to the
extent of the indemnification of Underwriters provided in Section 5 hereof;
and
(iii) providing such information to such Broker-Dealer as may be
required in order for such Broker-Dealer to comply with the requirements of
the NASD Rules.
(iv) Anything herein to the contrary notwithstanding, the Issuers 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 the request of the Holders of Securities or shares of
Common Stock issued or issuable upon conversion of the Notes, or to effect
more than one Underwritten Offering at the request of such Holders. The
Issuers 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
-15-
Minimum Amount (as defined below) of Securities and/or Common Stock issued
or issuable on conversion of the Notes have requested that such Securities
and/or shares of Common Stock be included in such an Underwritten Offering.
For purposes of this Agreement, the "Minimum Amount" means 50% of the
aggregate principal amount of Notes originally issued under the Indenture;
provided that, for purposes of computing the Minimum Amount, Holders of
Common Stock issued upon conversion of Notes shall be deemed to be holders
of the aggregate principal amount of Notes which were converted into those
shares of Common Stock. Only Holders of Securities or shares of Common
Stock issued or issuable upon conversion of the Notes which are Transfer
Restricted Securities shall be entitled to include such Securities or
shares of 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 Common Stock if so requested by the Holders.
Upon receipt by the Company and/or the Guarantor, from Holders of at least
the Minimum Amount of Securities and/or Common Stock issued or issuable
upon conversion of the Notes, of a request for an Underwritten Offering,
the Issuers will, within 10 days thereafter, cause the Company to mail
notice to all Holders of Securities and shares of Common Stock issued upon
conversion of the Notes stating that: (1) the Company has received a
request from the Holders of the requisite amount of Securities and/or
Common Stock issued or issuable on conversion of the Notes to effect an
Underwritten Offering on behalf of such Holders; (2) under the terms of
this Agreement, all Holders of Securities and shares of Common Stock issued
or issuable upon conversion of the Notes which are Transfer Restricted
Securities may include their Securities and shares of 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 Common
Stock included in such Underwritten Offering; (iii) all Holders electing to
include Securities or shares of Common Stock in such Underwritten Offering
must notify the Issuers 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 10th 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 Issuers; and (iv) setting forth such
other instructions as shall be necessary to enable Holders to include their
securities and shares of Common Stock in such Underwritten Offering. No
Holder shall be entitled to participate in an Underwritten Offering unless
such Holder notifies the Issuers 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(u) advise the Holders of the Securities and shares of the Common
Stock to be included in such Underwritten Offering that, because of
aggregate principal amount of Securities and/or number of shares of Common
Stock that such Holders have requested be included in the Underwritten
Offering, the
-16-
success of the offering would likely be materially adversely affected
by the inclusion of all of the Securities and shares of Common Stock
requested to be included, then the principal amount of Securities and
the number of shares of 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 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, neither the Issuers nor any Person,
other than a Holder of Securities or shares of Common Stock issued or
issuable upon conversion of the Notes and only with respect to its
Transfer Restricted Securities, shall be entitled to include any
securities in the Underwritten Offering.
4. Registration Expenses. The Issuers 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 to act as counsel for
the Holders in connection therewith. Notwithstanding the provisions of this
Section 4, each Holder shall bear the expense of any broker's commission, agency
fee or Underwriter's discount or commission.
5. Indemnification and Contribution.
(a) Each of the Company and the Guarantor, jointly and severally,
agrees to indemnify and hold harmless each Holder of Transfer Restricted
Securities covered by any Shelf Registration Statement (including each of
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 defending any such loss, claim,
damage, liability or action; provided, however, that neither the Company
nor the Guarantor will 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 or the Guarantor 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 use of such Prospectus has been suspended
pursuant to Section 2(d) or Section 3(s) hereof;
-17-
provided, further, in each case, that Holders received prior notice of such
suspension, or (C) if the Holder fails to deliver a Prospectus, as then
amended or supplemented, provided that the Issuers shall have delivered to
such Holder such Prospectus, as then amended or supplemented. This
indemnity agreement will be in addition to any liability which the Company
or the Guarantor may otherwise have.
(b) Each Holder of Transfer Restricted Securities covered by a Shelf
Registration Statement (including the Initial Purchasers) severally and not
jointly agrees to indemnify and hold harmless
(i) the Company and the Guarantor,
(ii) each of their directors,
(iii) each of their officers, and
(iv) each person who controls the Company or the Guarantor within
the meaning of either the Act or the Exchange Act to the same extent
as the foregoing indemnity from the Issuers to each such Holder,
but only with reference to written information relating to such Holder
furnished to the Issuers by or on behalf of such Holder specifically for
inclusion in the documents referred to in the foregoing indemnity.
This indemnity agreement shall 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
will not relieve it from liability under paragraph (a) or (b) above unless
and to the extent it was not otherwise notified of such action and such
failure results in the forfeiture by the indemnifying party of any rights
or defenses. 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 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;
-18-
(ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably 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 and that representation of the indemnified
party by counsel chosen by the indemnifying party would be
inappropriate due to actual or potential differing interests among the
parties represented by such counsel;
(iii) the indemnifying party shall not have employed counsel
reasonably 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.
Neither an indemnifying party nor an indemnified party will, without the
prior written consent of the other parties, 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 such other parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of such
other parties from all liability arising out of such claim, action, suit or
proceeding. An indemnifying party shall not be liable for any losses,
claims, damages or liabilities by reason of any settlement of any action or
proceeding effected without such indemnifying party's prior written
consent, which consent will not be unreasonably withheld.
(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
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 any sales of Transfer
Restricted Securities under the Shelf Registration Statement; 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 Purchase
Agreement. 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 Issuers shall be deemed to be equal to the sum of
(x) the total net proceeds from the Initial Placement (before deducting
expenses) and (y) the total amount of Liquidated Damages which the Issuers
-19-
were not required to pay as a result of registering the Transfer Restricted
Securities 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 received in
connection with the Initial Placement, and benefits received by any other
Holders shall be deemed to be equal to the value of receiving Transfer
Restricted Securities 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 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 intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The parties agree that it would
not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the
provisions of this Section 5(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 or the Guarantor within the meaning of either the Act
or the Exchange Act, each officer of the Company who signed the Shelf
Registration Statement and each director of the Company or the Guarantor
shall have the same rights to contribution as the Company or the Guarantor,
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, the Company, the Guarantor or any of the officers,
directors or controlling persons referred to in Section 5 hereof, and will
survive the sale by a Holder of Transfer Restricted Securities covered by a
Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. Neither the Company nor the Guarantor
has, 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
-20-
be given, unless the Issuers have 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
Issuers 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
Transfer Restricted 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 the Majority Holders, determined on
the basis of the Transfer Restricted Securities 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:
(i) if to the Representatives, initially at its address set forth
in the Purchase Agreement;
(ii) if to any other Holder, at the most current address of such
Holder maintained by the Registrar under the Indenture or the
registrar of the Common Stock (provided that while the Securities or
the Common Stock are in book-entry form, notice to the Trustee shall
serve as notice to the Holders), or, in the case of the Notice Holder,
the address set for in its Notice and Questionnaire; and
(iii) if to the Company or the Guarantor, initially at the
Company's 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 Issuers 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 or the Guarantor thereto, subsequent Holders. The Issuers hereby
agree 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 or the Guarantor
under the Indenture, then such successor shall enter into an agreement, in
form and substance reasonably satisfactory to the Representative, whereby
such successor shall assume all of the Company's or Guarantor's
obligations, as the case may be, under this Agreement.
(c) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so
-21-
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.
(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 Issuers, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of
Securities or the Common Stock issuable upon conversion of the Notes is
required hereunder, Securities or the Common Stock issued upon conversion
of the Notes held by the Company, the Guarantor or their Affiliates (other
than subsequent Holders of Securities or the Common Stock issued upon
conversion of the Notes if such subsequent Holders are deemed to be
Affiliates 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.
(j) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Shelf Registration Period,
except for any liabilities or obligations under Section 2(e), 4 or 5 to the
extent arising prior to the end of the Shelf Registration Period.
[signature page follows]
-22-
Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Guarantor and you.
Very truly yours,
GATX CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
GATX FINANCIAL CORPORATION
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXXXX XXXXX XXXXXX INC.
X.X. XXXXXX SECURITIES INC.
By: Xxxxxxx Xxxxx Barney Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
-23-
FORM OF SELLING SECURITY HOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial holder of 7.5% Convertible Senior Notes due 2007
(the "Notes") of GATX Corporation ("GATX" or the "Company") or shares of common
stock of the Company issuable upon conversion of the Notes (together with the
Notes, the "Registrable Securities") of the Company understands that the Company
has filed or intends to file with the 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 Registrable Securities in
accordance with the terms of the Registration Rights Agreement (the
"Registration Rights Agreement") dated as of February 1, 2002 among the Company,
GATX Financial Corporation and the initial purchasers named therein. The
Registration Rights Agreement is available from the Company upon request at the
address set forth below. All capitalized terms not otherwise defined herein
shall have the meaning ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to the benefits
of the Registration Rights Agreement. In order to sell or otherwise dispose of
any Registrable Securities pursuant to the Shelf Registration Statement, a
beneficial owner of Registrable Securities generally will be required to be
named as a selling securityholder in the related prospectus, deliver a
prospectus to purchasers of Registrable Securities and be bound by those
provisions of the Registration Rights Agreement applicable to such beneficial
owner (including certain indemnification provisions as described below).
Beneficial owners that do not complete this Notice and Questionnaire and deliver
it to the Company as provided below will not be named as selling securityholders
in the prospectus and therefore will not be permitted to sell any Registrable
Securities pursuant to the Shelf Registration Statement. Beneficial owners are
encouraged to complete and deliver this Notice and Questionnaire prior to the
effectiveness of the Shelf Registration Statement so that such beneficial owners
may be named as selling securityholders in the related prospectus at the time of
effectiveness. Upon receipt of a completed Notice and Questionnaire from a
beneficial owner following the effectiveness of the Shelf Registration
Statement, the Company will, as promptly as practicable but in any event within
five business days of such receipt, file such amendments to the Shelf
Registration Statement or supplements to the related prospectus as are necessary
to permit such holder to deliver such prospectus to purchasers of Registrable
Securities.
Certain legal consequences may arise from being named as selling
securityholders in the Shelf Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable 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 the related prospectus.
Notice
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby gives notice to the Company of its intention to
sell or otherwise dispose of Registrable Securities beneficially owned by it and
listed below in Item 3 (unless otherwise specified under Item 3) pursuant to the
Shelf Registration Statement. The undersigned, by signing and returning
A-1
this Notice and Questionnaire, understands that it will be bound by the terms
and conditions of this Notice and Questionnaire and the Registration Rights
Agreement.
The undersigned hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
Questionnaire
1. (a) Full Legal Name of Selling Securityholder:
---------------------------------------------------------------------------
(b) Full legal name of Registered Holder (if not the same as (a) above)
through which Registrable Securities listed in (3) below are held:
---------------------------------------------------------------------------
(c) Full legal name of broker-dealer or other third party through which
Registrable Securities listed in (3) below are held:
---------------------------------------------------------------------------
(d) Full legal name of DTC Participant (if applicable and if not the same
as (b) or (c) above) through which Registrable Securities listed in
(3) below are held:
---------------------------------------------------------------------------
2. Address for Notices to Selling Securityholder:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Telephone:
-----------------------------------------------------------------
Fax:
----------------------------------------------------------------------
Contact Person
------------------------------------------------------------
3. Beneficial Ownership of Registrable Securities:
(a) Type and Principal Amount of Registrable Securities beneficially
owned:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
(b) CUSIP No(s). of such Registrable Securities beneficially owned:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Unless otherwise indicated in the space provided below, all Notes and all
shares of common stock listed in response to Item (3)(a) above, and all
shares of common stock issuable upon conversion of the Notes listed in
response to Item (3)(a) above, will be
A-2
included in the Shelf Registration Statement. If the undersigned does not
wish all such Notes or shares of common stock to be so included, please
indicate below the principal amount or the number of shares to be included:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
4. Beneficial Ownership of Company securities owned by the Selling
Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any securities of the Company other than
the Registrable Securities listed above in Item (3).
(a) Type and Amount of Other Securities beneficially owned by the Selling
Securityholder:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
(b) CUSIP No(s). of such Other Securities beneficially owned:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
5. Relationship with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, directors or principal equity holders (5% or more) 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 (including its donees or
pledgees) intends to distribute the Registrable Securities listed above in
Item (3) pursuant to the Shelf Registration Statement only as follows (if
at all): Such Registrable Securities may be sold from time to time directly
by the undersigned or alternatively through underwriters or broker-dealers
or agents. If the Registrable Securities are sold through underwriters or
broker-dealers or agents, the Selling Securityholder will be responsible
for underwriting discounts or commissions or agent's commissions. Such
Registrable Securities may be sold in one or more transactions at fixed
prices, at prevailing market prices at the time of sale, at varying prices
determined at the time of sale, or at
A-3
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 Registrable 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 Registrable Securities or otherwise, the
undersigned may enter into hedging transactions with broker-dealers, which
may in turn engage in short sales of the Registrable Securities, short and
deliver Registrable Securities to close out such short positions, or loan
or pledge Registrable Securities to broker-dealers that in turn may sell
such securities. The Selling Securityholder may pledge or grant a security
interest in some or all of the Registrable 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 Registrable Securities from time to
time 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 securityholder for purposes of the prospectus.
State any exceptions here:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Note: In no event will such method(s) of distribution take the form of an
underwritten offering of the Registrable Securities without the prior
agreement of the Company.
The undersigned acknowledges that it understands its obligation to
comply with the provisions of the Securities Exchange Act of 1934, as amended,
and the rules thereunder relating to stock manipulation, particularly Regulation
M thereunder (or any successor rules or regulations) and the provisions of the
Securities Act of 1933, as amended, relating to prospectus delivery, in
connection with any offering of Registrable Securities pursuant to the Shelf
Registration Statement. The undersigned agrees that neither it nor any person
acting on its behalf will engage in any transaction in violation of such
provisions.
The Selling Securityholder hereby acknowledges its obligations under
the Registration Rights Agreement to indemnify and hold harmless certain persons
set forth therein.
Pursuant to the Registration Rights Agreement, the Company has agreed
under certain circumstances to indemnify the Selling Securityholders against
liabilities.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing at the
address set forth below.
A-4
In the event any Selling Securityholder transfers all or any portion of
the Registrable Securities listed in Item 3 above after the date on which such
information is provided to GATX, the Selling Securityholder will notify the
transferee(s) at the time of transfer of its rights and obligations under this
Notice and Questionnaire and the Registration Rights Agreement.
By signing below, the undersigned 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 the
related prospectus. The undersigned understands that such information will be
relied upon by the Company without independent investigation or inquiry in
connection with the preparation or amendment of the Shelf Registration Statement
and the related prospectus.
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 authorized agent.
Beneficial Owner
By:
---------------------------------------------
Name:
Title:
Dated:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO:
GATX Corporation
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
A-5
