EXHIBIT 4.3
Execution Copy
Church & Xxxxxx Co., Inc.
5.25% Convertible Senior Debentures due August 15, 2033
Registration Rights Agreement
August 11, 2003
Xxxxxxx, Sachs & Co.,
X.X. Xxxxxx Securities Inc.,
PNC Capital Markets, Inc.,
Fleet Securities, Inc.,
NatCity Investments, Inc.,
Scotia (USA) Capital Inc.,
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Church & Xxxxxx Co., Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the Purchasers (as defined herein) upon the terms
set forth in the Purchase Agreement (as defined herein) its 5.25% Convertible
Senior Debentures due August 15, 2033 (the "Securities"). As an inducement to
the Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Purchasers thereunder, the Company agrees
with the Purchasers for the benefit of Holders (as defined herein) from time to
time of the Registrable Securities (as defined herein) as follows:
1. Definitions.
(a) Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Purchase Agreement. As used in this Agreement,
the following defined terms shall have the following meanings:
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Closing Date" means the First Time of Delivery as defined in the
Purchase Agreement.
"Commission" means the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"Common Stock" means the Company's common stock, par value $1.00 per
share, together with any associated preferred share purchase rights.
"DTC" means The Depository Trust Company.
"Effective Failure" has the meaning assigned thereto in Section 7(b)
hereof.
"Effectiveness Period" has the meaning assigned thereto in Section
2(b)(i) hereof.
"Effective Time" means the time at which the Commission declares the
Shelf Registration Statement effective or at which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" has the meaning assigned thereto in Section 3(a)(iii)
hereof.
"Exchange Act" means the United States Securities Exchange Act of 1934,
as amended.
"Holder" means any person that is the record owner of Registrable
Securities (and includes any person that has a beneficial interest in any
Registrable Security in book-entry form).
"Indenture" means the Indenture, dated as of August 11, 2003, between
the Company and The Bank of New York, as amended and supplemented from time to
time in accordance with its terms.
"Liquidated Damages" has the meaning assigned thereto in Section 7(a)
hereof.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering,
if any, conducted pursuant to Section 6 hereof.
"NASD Rules" means the Rules of the National Association of Securities
Dealers, Inc., as amended from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Appendix A
hereto.
The term "person" means an individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
"Prospectus" means the prospectus (including, without limitation, any
preliminary prospectus, any final prospectus and any prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act)
included in the Shelf Registration Statement, as amended or supplemented by any
prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Securities covered by the Shelf Registration Statement and by
all other amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by the Company under the Exchange Act and incorporated
by reference therein.
"Purchase Agreement" means the purchase agreement, dated as of August
5, 2003, between the Purchasers and the Company relating to the Securities.
"Purchasers" means the Purchasers named in Schedule I to the Purchase
Agreement.
"Registrable Securities" means all or any portion of the Securities
issued from time to time under the Indenture in registered form and the shares
of Common Stock issuable upon conversion of such Securities; provided, however,
that a security ceases to be a Registrable Security when it is no longer a
Restricted Security.
"Registration Default" has the meaning assigned thereto in Section 7(a)
hereof.
"Restricted Security" means any Security or share of Common Stock
issuable upon conversion thereof except any such Security or share of Common
Stock that (i) has been effectively registered under the Securities Act and sold
in a manner contemplated by the Shelf Registration Statement (or any other
registration statement filed under the Securities Act in respect of the sale of
such Security), (ii) has been transferred in compliance with Rule 144 under the
Securities Act (or any successor provision thereto) or is transferable pursuant
to paragraph (k) of such Rule 144 (or any successor provision thereto), (iii)
has otherwise been transferred and a new Security or share of Common Stock not
subject to transfer restrictions under the Securities Act has been delivered by
or on behalf of the Company in accordance with Section 3.5 of the Indenture or
(iv) ceases to be outstanding.
"Rules and Regulations" means the published rules and regulations of
the Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
"SAS 72 Analogue Document" has the meaning assigned thereto in Section
3(p) hereof.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Shelf Registration" means a registration effected pursuant to Section
2 hereof.
"Shelf Registration Statement" means a "shelf" registration statement
filed under the Securities Act providing for the registration of, and the sale
on a continuous or delayed basis by the Electing Holders of, all of the
Registrable Securities held by the Electing Holders pursuant to Rule 415 under
the Securities Act and/or any similar rule that may be adopted by the
Commission, filed by the Company pursuant to the provisions of Section 2 of this
Agreement, including the Prospectus contained therein, any amendments and
supplements to such registration statement, including post-effective amendments,
and all exhibits and all material incorporated by reference in such registration
statement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
as the same shall be amended from time to time.
The term "underwriter" means any underwriter of Registrable Securities
in connection with an offering thereof under a Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a percentage of
the "principal amount" of Registrable Securities or to a percentage of
Registrable Securities, Common Stock shall be treated as representing the
principal amount of Securities that was surrendered for conversion or exchange
in order to receive such number of shares of Common Stock.
2. Shelf Registration.
(a) The Company shall use its reasonable best efforts to file with the
Commission, no later than 90 calendar days following the Closing Date, a Shelf
Registration Statement relating to the offer and sale of the Registrable
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 and, thereafter, shall use its reasonable best efforts to cause such
Shelf Registration Statement to be declared effective under the Securities Act
no later than 180 calendar days following the Closing Date; provided, however,
that the Company may, upon written notice to all Holders, postpone having the
Shelf Registration Statement declared effective for a reasonable period not to
exceed 90 days if the Company possesses material non-public information, the
disclosure of which would have a material adverse effect on the Company and its
subsidiaries taken as a whole or would impede the consummation of a proposed or
pending material business transaction; provided, further, however, that no
Holder shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement or to use the Prospectus forming a part thereof for
resales of Registrable Securities unless such Holder is an Electing Holder.
(b) The Company shall use its reasonable best efforts:
(i) to keep the Shelf Registration Statement continuously
effective under the Securities Act in order to permit the Prospectus
forming a part thereof to be usable by Electing Holders until the
earliest of (1) such time as there are no Registrable Securities
outstanding; (2) the expiration of the period referred to in Rule
144(k) of the Securities Act with respect to all Registrable Securities
held by Persons that are not Affiliates of the Company; and (3) two
years from the Second Time of Delivery (as defined in the Purchase
Agreement) or, if there is no Second Time of Delivery, the Closing Date
(such period being referred to herein as the "Effectiveness Period");
(ii) after the Effective Time of the Shelf Registration
Statement, promptly upon the request of any Holder of Registrable
Securities that is not then an Electing Holder, to take any action
reasonably necessary to enable such Holder to use the Prospectus
forming a part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to identify such
Holder as a selling securityholder in the Shelf Registration Statement;
provided, however, that nothing in this subparagraph shall relieve such
Holder of the obligation to return a properly completed and signed
Notice and Questionnaire to the Company in accordance with Section
3(a)(ii) hereof; and provided further, that in no event will the
Company be obligated to make more than two filings (including not more
than one post-effective amendment to the Shelf Registration Statement)
pursuant to this Section 3(a)(ii) during any six-month period, the
first of which will begin on the date the Shelf Registration Statement
becomes effective and the last of which (which period will be six
months or such shorter period of time between the commencement of such
period and the last day of the Effectiveness Period) shall end on the
last day of the Effectiveness Period; and
(iii) if at any time the Securities, pursuant to Article XII
of the Indenture, are convertible into securities other than Common
Stock, to cause, or to cause any successor under the Indenture to
cause, such securities to be included in the Shelf Registration
Statement no later than the date on which the Securities may then be
convertible into such securities.
The Company shall be deemed not to have used its reasonable best efforts to keep
the Shelf Registration Statement effective during the requisite period if the
Company voluntarily takes any action that would result in Electing Holders of
Registrable Securities covered thereby not being able to offer and sell any of
such Registrable Securities during that period, unless such action is (A)
required by applicable law and the Company thereafter promptly complies with the
requirements of paragraph 3(j) below or (B) permitted pursuant to Section 2(c)
below; provided, however, that nothing herein shall prevent the Company from
pursuing activities for valid business reasons (not including avoidance of the
Company's obligations hereunder) even though such activities may result in
Holders not being able to offer and sell Registrable Securities pursuant to the
Shelf Registration Statement.
(c) The Company may suspend the use of the Prospectus for a period not
to exceed 45 days in any 90-day period or an aggregate of 90 days in any
12-month period if the Board of Directors of the Company shall have determined
in good faith that because of valid business reasons (not including avoidance of
the Company's obligations hereunder), including without limitation the
acquisition or divestiture of assets, pending corporate developments, public
filings with the Commission and similar events, it is in the best interests of
the Company to suspend such use, and prior to suspending such use the Company
provides the Electing Holders with written notice of such suspension, which
notice need not specify the nature of the event giving rise to such suspension.
3. Registration Procedures. In connection with the Shelf Registration
Statement, the following provisions shall apply:
(a) (i) Not less than 30 calendar days prior to the Effective Time of
the Shelf Registration Statement, the Company shall mail the Notice and
Questionnaire to the Holders of Registrable Securities. No Holder shall be
entitled to be named as a selling securityholder in the Shelf Registration
Statement as of the Effective Time, and no Holder shall be entitled to use the
Prospectus forming a part thereof for offers and resales of Registrable
Securities at any time, unless such Holder has returned a properly completed and
signed Notice and Questionnaire to the Company by the deadline for response set
forth therein; provided, however, Holders of Registrable Securities shall have
at least 20 calendar days from the date on which the Notice and Questionnaire is
first mailed to such Holders to return a properly completed and signed Notice
and Questionnaire to the Company.
(ii) After the Effective Time of the Shelf Registration
Statement, the Company shall, upon the request of any Holder
of Registrable Securities that is not then an Electing Holder,
as promptly as reasonably practicable send a Notice and
Questionnaire to such Holder. The Company shall not be
required to take any action to name such Holder as a selling
securityholder in the Shelf Registration Statement or to
enable such Holder to use the Prospectus forming a part
thereof for resales of Registrable Securities, as otherwise
provided in this Agreement, until such Holder has returned a
properly completed and signed Notice and Questionnaire to the
Company.
(iii) The term "Electing Holder" shall mean any Holder of
Registrable Securities that has returned a properly completed
and signed Notice and Questionnaire to the Company in
accordance with Section 3(a)(i) or 3(a)(ii) hereof.
(b) The Company shall furnish to each Electing Holder, prior to the
Effective Time, a copy of the Shelf Registration Statement as initially filed
with the Commission, and if such Electing Holder so requests in writing, copies
of each amendment thereto. Prior to the Effective Time, the Company shall use
its reasonable best efforts to take into account and reflect in an amendment to
the Shelf Registration Statement any comments on the Shelf Registration
Statement as initially filed as the Electing Holders and as their counsel
reasonably may propose on a timely basis.
(c) The Company shall as promptly as reasonably practicable take such
action as may be necessary so that (i) each of the Shelf Registration Statement
and any amendment thereto and the Prospectus forming a part thereof and any
amendment or supplement thereto (and each report or other document incorporated
therein by reference in each case) complies in all material respects with the
Securities Act and the Exchange Act and the respective rules and regulations
thereunder, (ii) each of the 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) each of the
Prospectus forming a part of the Shelf Registration Statement, and any amendment
or supplement to such Prospectus, does not at any time during the Effectiveness
Period include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(d) The Company shall as promptly as reasonably practicable advise each
Electing Holder, and shall confirm such advice in writing if so requested by any
such Electing Holder:
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when a Shelf
Registration Statement or any post-effective amendment thereto
has become effective, in each case making a public
announcement thereof by release made to Reuters Economic
Services and Bloomberg Business News;
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the
Prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for such
purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the
securities included in the Shelf Registration Statement for
sale in any jurisdiction or the initiation of any proceeding
for such purpose; and
(v) of the happening of any event or the existence of any
state of facts (but which advice need not specify the nature
of such event or state of facts) that requires the making of
any changes in the Shelf Registration Statement or the
Prospectus so that such Shelf Registration Statement and
Prospectus do not contain an untrue statement of a material
fact and do not omit to state a material fact (in the case of
the Registration Statement required to be stated therein) or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they
were made) not misleading (which advice shall be accompanied
by an instruction to such Electing Holders to suspend the use
of the Prospectus until the requisite changes have been made).
(e) The Company shall use its reasonable best efforts to prevent the
issuance, and if issued to obtain the withdrawal at the earliest possible time,
of any order suspending the effectiveness of the Shelf Registration Statement.
(f) The Company shall furnish to each Electing Holder, upon their
request without charge, at least one copy of the Shelf Registration Statement
and all post-effective amendments thereto, including financial statements and
schedules, and, if such Electing Holder so requests in writing, all reports,
other documents and exhibits that are filed with or incorporated by reference in
the Shelf Registration Statement.
(g) The Company shall, during the Effectiveness Period, deliver to each
Electing Holder, without charge, as many copies of the Prospectus (including
each preliminary Prospectus) included in the Shelf Registration Statement and
any amendment or supplement thereto as such Electing Holder may reasonably
request; and the Company consents (except during the periods specified in
Section 2(c) above or during the continuance of any event or the existence of
any state of facts described in Section 3(d)(v) above) to the use of the
Prospectus and any amendment or supplement thereto by each of the Electing
Holders in connection with the offering and sale of the Registrable Securities
covered by the Prospectus and any amendment or supplement thereto during the
Effectiveness Period.
(h) Prior to any offering of Registrable Securities pursuant to the
Shelf Registration Statement, the Company shall (i) register or qualify or
cooperate with the Electing Holders and their respective counsel in connection
with the 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 Electing Holder may reasonably request in writing, (ii)
keep such registrations or qualifications in effect and comply with such laws so
as to permit the continuance of offers and sales in such jurisdictions for so
long as may be necessary to enable any Electing Holder or underwriter, if any,
to complete its distribution of Registrable Securities pursuant to the Shelf
Registration Statement, and (iii) take any and all other actions necessary or
advisable to enable the disposition in such jurisdictions of such Registrable
Securities; provided, however, that in no event shall the Company be obligated
to (A) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to so qualify but for this
Section 3(h) or (B) file any general consent to service of process or subject
itself to taxation in any jurisdiction where it is not as of the date hereof so
subject.
(i) Unless any Registrable Securities shall be in book-entry only form,
the Company shall cooperate with the Electing Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold pursuant to the Shelf Registration Statement, which certificates, if so
required by any securities exchange upon which any Registrable Securities are
listed, shall be penned, lithographed or engraved, or produced by any
combination of such methods, on steel engraved borders, and which certificates
shall be free of any restrictive legends and in such permitted denominations and
registered in such names as Electing Holders reasonably may request in
connection with the sale of Registrable Securities pursuant to the Shelf
Registration Statement.
(j) Upon the occurrence of any fact or event contemplated by paragraph
3(d)(v) above, the Company shall as promptly as reasonably practicable prepare a
post-effective amendment to any Shelf Registration Statement or an amendment or
supplement to the related Prospectus or file any other required document so
that, as thereafter delivered to purchasers of the Registrable Securities
included therein, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company shall not be required
to file such amendment, supplement or document if the Board of Directors of the
Company has made a determination pursuant to Section 2(c), so long as the
suspension pursuant to Section 2(c) is continuing. If the Company notifies the
Electing Holders of the occurrence of any fact or event contemplated by
paragraph 3(d)(v) above, the Electing Holder shall suspend the use of the
Prospectus until the requisite changes to the Prospectus have been made.
(k) Not later than the Effective Time of the Shelf Registration
Statement, the Company shall provide a CUSIP number for the Registrable
Securities that are debt securities.
(l) The Company shall use its reasonable best efforts to comply with
all applicable Rules and Regulations, and to make generally available to its
securityholders as soon as practicable, but in any event not later than eighteen
months after (i) the effective date (as defined in Rule 158(c) under the
Securities Act) of the Shelf Registration Statement, (ii) the effective date of
each post-effective amendment to the Shelf Registration Statement, and (iii) the
date of each filing by the Company with the Commission of an Annual Report on
Form 10-K that is incorporated by reference in the Shelf Registration Statement,
an earning statement of the Company and its subsidiaries complying with Section
11(a) of the Securities Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158).
(m) Not later than the Effective Time of the Shelf Registration
Statement, the Company shall cause the Indenture to be qualified under the Trust
Indenture Act; in connection with such qualification, the Company shall
cooperate with the Trustee under the Indenture and the Holders (as defined in
the Indenture) to effect such changes to the Indenture as may be required for
such Indenture to be so qualified in accordance with the terms of the Trust
Indenture Act; and the Company shall execute, and shall use all reasonable
efforts to cause the Trustee to execute, all documents that may be required to
effect such changes and all other forms and documents required to be filed with
the Commission to enable such Indenture to be so qualified in a timely manner.
In the event that any such amendment or modification referred to in this Section
3(m) involves the appointment of a new trustee under the Indenture, the Company
shall appoint a new trustee thereunder pursuant to the applicable provisions of
the Indenture.
(n) In the event of an underwritten offering conducted pursuant to
Section 6 hereof, the Company shall, if requested, as promptly as reasonably
practicable include or incorporate in a Prospectus supplement or post-effective
amendment to the Shelf Registration Statement such information as the Managing
Underwriters reasonably agree should be included therein and to which the
Company does not reasonably object and shall make all required filings of such
Prospectus supplement or post-effective amendment as soon as practicable after
it is notified of the matters to be included or incorporated in such Prospectus
supplement or post-effective amendment.
(o) The Company shall enter into such customary agreements (including
an underwriting agreement in customary form in the event of an underwritten
offering conducted pursuant to Section 6 hereof) and take all other appropriate
action in order to expedite and facilitate the registration and disposition of
the Registrable Securities.
(p) The Company shall:
(i)(A) make reasonably available for inspection during normal
business hours by the Electing Holders entitled thereto pursuant to the
provisions of this Section 3(p), any underwriter participating in any
disposition pursuant to the Shelf Registration Statement in connection
with an underwritten offering conducted pursuant to Section 6 hereof,
and any attorney, accountant or other agent retained by such Electing
Holders or any such underwriter all relevant financial and other
records, pertinent corporate documents and properties of the Company
and its subsidiaries, and (B) cause the Company's officers, directors
and employees to supply all information reasonably requested by such
Electing Holders or any such underwriter, attorney, accountant or agent
in connection with the Shelf Registration Statement, in each case, as
is customary for similar due diligence examinations; provided, however,
that all records, information and documents that are designated by the
Company, in good faith, as confidential shall be kept confidential by
such Electing Holders and any such underwriter, attorney, accountant or
agent, unless such disclosure is made in connection with a court
proceeding or such records, information or documents become available
to the public generally or through a third party without an
accompanying obligation of confidentiality, and the Company may request
that the Electing Holders agree in writing to maintain the
confidentiality of information obtained in such due diligence
examination; and provided further, that such inspection and information
gathering be coordinated on behalf of the Electing Holders entitled
thereto and the other parties entitled thereto by one counsel
designated by and on behalf of the Electing Holders entitled thereto
and other parties and provided further, that an Electing Holder may
participate in such foregoing inspection and information gathering only
if such Electing Holder provides the same opinion letter or other
representation letter, in each case addressed to the Company rather
than to accountants, as required under Statement on Auditing Standards
No. 72, "Letters for Underwriters and Certain Other Requesting Parties"
(as may be amended from time to time), from persons other than "named
underwriters" who request a comfort letter from accountants (the "SAS
72 Analogue Document");
(ii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, make such representations and warranties
to each of the Electing Holders participating in such underwritten
offering who provides the SAS 72 Analogue Document to the Company in
connection with such underwritten offering and to the Managing
Underwriters, in form, substance and scope as are customarily made by
the Company to underwriters in primary underwritten offerings of equity
and convertible debt securities;
(iii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain opinions of counsel to the Company
(which counsel and opinions shall be reasonably satisfactory to the
Managing Underwriters) addressed to each Electing Holder participating
in such underwritten offering who provides the SAS 72 Analogue Document
to the Company in connection with such underwritten offering and the
underwriters, covering such matters as are customarily covered in
opinions requested in primary underwritten offerings of equity and
convertible debt securities and such other matters as may be reasonably
requested by such Electing Holders and underwriters;
(iv) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain "cold comfort" letters and updates
thereof from the independent public accountants of the Company (and, if
necessary, from the independent public accountants of any subsidiary of
the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be,
included in the Shelf Registration Statement), addressed to each
Electing Holder participating in such underwritten offering (if such
Electing Holder has provided such letter, representations or
documentation, if any, required under generally accepted auditing
standards or otherwise for such cold comfort letter to be so addressed
and if such Electing Holder has provided the SAS 72 Analogue Document
to the Company in connection with such underwritten offering) and the
underwriters, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
primary underwritten offerings;
(v) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, deliver such documents and certificates
as are customary and as may be reasonably requested by any Electing
Holder participating in such underwritten offering who provides the SAS
72 Analogue Document to the Company in connection with such
underwritten offering and the Managing Underwriters, if any.
(q) The Company will use its reasonable best efforts to cause the
Common Stock initially issuable upon conversion of the Securities to be listed
on the New York Stock Exchange or other stock exchange or trading system on
which the Common Stock primarily trades on or prior to the Effective Time of the
Shelf Registration Statement hereunder.
(r) In the event that any broker-dealer registered under the Exchange
Act shall be an "affiliate" (as defined in Rule 2720(b)(1) of the NASD Rules (or
any successor provision thereto)) of the Company or has a "conflict of interest"
(as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision
thereto)) and such broker-dealer shall underwrite, participate as a member of an
underwriting syndicate or selling group or otherwise assist in the distribution
of any Registrable Securities covered by the Shelf Registration Statement,
whether as a Holder of such Registrable Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or otherwise,
the Company shall assist such broker-dealer in complying with the requirements
of the NASD Rules, including, without limitation (unless the criteria set forth
in Rule 1720(c)(3)(B) or Rule 7270(c)(3)(C) of the NASD Rules (or any successor
provision thereto) applies), by (A) engaging a "qualified independent
underwriter" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor
provision thereto)) to participate in the preparation of the registration
statement relating to such Registrable Securities, to exercise usual standards
of due diligence in respect thereto and to recommend the public offering price
of such Registrable Securities, (B) indemnifying such qualified independent
underwriter to the extent of the indemnification of underwriters provided in
Section 5 hereof, and (C) providing such information to such broker-dealer as
may be required in order for such broker-dealer to comply with the requirements
of the NASD Rules.
(s) The Company shall use its reasonable best efforts to take all other
steps necessary to effect the registration, offering and sale of the Registrable
Securities covered by the Shelf Registration Statement contemplated hereby.
4. Registration Expenses. Except as otherwise provided in Section 3,
the Company shall bear all fees and expenses incurred in connection with the
performance of its obligations under Sections 2, 3 and 6 hereof and shall bear
or reimburse the Electing Holders for the reasonable fees and disbursements of a
single counsel selected by a plurality of all Electing Holders who own an
aggregate of not less than 25% of the Registrable Securities covered by the
Shelf Registration Statement to act as counsel therefore in connection
therewith. Each Electing Holder shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Electing Holder's Registrable Securities pursuant to the Shelf Registration
Statement.
5. Indemnification and Contribution.
(a) Indemnification by the Company. Following the registration of the
Registrable Securities pursuant to Section 2 hereof, the Company shall indemnify
and hold harmless each Electing Holder and each securities professional that is
an underwriter (within the meaning of Section 2(a)(11) of the Securities Act)
(each, an "Underwriter"), if any, which facilitates the disposition of
Registrable Securities, and each of their respective officers and directors and
each person who controls such Electing Holder or Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such
person being sometimes referred to as a "Designated Person") against any losses,
claims, damages or liabilities, joint or several, to which such Designated
Person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement, or any Prospectus
contained therein or furnished by the Company to any Designated Person, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and the
Company hereby agrees to reimburse such Designated Person for any legal or other
expenses reasonably incurred by such Designated Person in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable to any such
Designated Person in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such Shelf
Registration Statement or Prospectus, or amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of such Designated Person expressly for use therein (and provided,
further, that the Company shall not be liable for any losses, claims, damages or
liabilities (i) arising from any offer or sale of Registrable Securities during
a period in which the Company has suspended use of the Prospectus pursuant to
Section 2(c) or 3(j) and of which suspension the Electing Holder has been
provided notice) or (ii) if the Electing Holder fails to deliver, within the
time required by the Securities Act, a Prospectus that is amended or
supplemented, and such Prospectus, as amended or supplemented, would have
corrected the untrue statement or omission or alleged untrue statement or
omission of a material fact contained in the Prospectus delivered by the
Electing Holder, so long as the Prospectus, as amended or supplemented, has been
delivered to such Electing Holder prior to such time.
(b) Indemnification by the Electing Holders and any Agents and
Underwriters. Each Electing Holder agrees, as a consequence of the inclusion of
any of such Electing Holder's Registrable Securities in such Shelf Registration
Statement, and each Underwriter, if any, which facilitates the disposition of
Registrable Securities shall agree, as a consequence of facilitating such
disposition of Registrable Securities, severally and not jointly, to (i)
indemnify and hold harmless the Company, its directors, officers who sign any
Shelf Registration Statement 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, against any losses, claims, damages or liabilities to which
the Company or such other persons may become subject, under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in such Shelf Registration
Statement or Prospectus, or any amendment or supplement, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Electing Holder, or Underwriter expressly for
use therein (which shall include, without limitation, the information provided
to the Company by such Electing Holder in the Notice of Registration Statement
and Selling Securityholder Questionnaire), and (ii) reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party under this Section 5, notify such
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under the indemnification
provisions of or contemplated by subsection (a) or (b) above. In case any such
action shall be brought against any indemnified party and it shall notify an
indemnifying party of the commencement thereof, such indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party under this
Section 5 for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. In no event shall
the indemnifying party be liable for the fees and expenses of more than one
counsel (other than local counsel) for all indemnified parties in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in this Section 5
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 5(d) were determined by
pro rata allocation (even if the Electing Holders or any Underwriters, or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 5(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Electing
Holders and any Underwriters in this Section 5(d) to contribute shall be several
in proportion to the percentage of principal amount of Registrable Securities
registered or underwritten, as the case may be, by them and not joint.
(e) Notwithstanding any other provision of this Section 5, in no event
will any (i) Electing Holder be required to undertake liability to any person
under this Section 5 for any amounts in excess of the dollar amount of the
proceeds to be received by such Holder from the sale of such Holder's
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to the Shelf Registration Statement and (ii)
Underwriter be required to undertake liability to any person hereunder for any
amounts in excess of the fee, discount, commission or other compensation payable
to such Underwriter with respect to the Registrable Securities underwritten by
it and distributed to the public.
(f) The obligations of the Company under this Section 5 shall be in
addition to any liability which the Company may otherwise have to any Designated
Person and the obligations of any Designated Person under this Section 5 shall
be in addition to any liability which such Designated Person may otherwise have
to the Company. The remedies provided in this Section 5 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.
(g) Notwithstanding any other provision of this Section 5, the
indemnification, notice of claims, contribution and related provisions of any
underwriting agreement entered into by the Company and the Managing Underwriters
(whether acting on their own behalf or as representatives of several
underwriters), including, if applicable, any such provisions relating to a
"qualified independent underwriter" (as defined in Rule 2720(b)(15) of the NASD
Rules (or any successor provision thereto)), will supersede the other provisions
of this Section 5.
6. Underwritten Offering. Any Holder of Registrable Securities who
desires to do so may sell Registrable Securities (in whole or in part) in an
underwritten offering; provided that (i) the Electing Holders of at least 50% in
aggregate principal amount of the Registrable Securities then covered by the
Shelf Registration Statement shall request such an offering and (ii) at least
such aggregate principal amount of such Registrable Securities shall be included
in such offering; and provided further that the Company shall not be obligated
to cooperate with more than one underwritten offering during the Effectiveness
Period. Upon receipt of such a request, the Company shall provide all Holders of
Registrable Securities written notice of the request, which notice shall inform
such Holders that they have the opportunity to participate in the offering. In
any such underwritten offering, the investment banker or bankers and manager or
managers that will administer the offering will be selected by, and the
underwriting arrangements with respect thereto (including the size of the
offering) will be approved by, the holders of a majority of the Registrable
Securities to be included in such offering; provided, however, that such
investment bankers and managers and underwriting arrangements must be reasonably
satisfactory to the Company. No Holder may participate in any underwritten
offering contemplated hereby unless (a) such Holder agrees to sell such Holder's
Registrable Securities to be included in the underwritten offering in accordance
with any approved underwriting arrangements, (b) such Holder completes and
executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such approved underwriting arrangements, and (c) if such Holder is not
then an Electing Holder, such Holder returns a properly completed and signed
Notice and Questionnaire to the Company in accordance with Section 3(a)(ii)
hereof within a reasonable amount of time before such underwritten offering. The
Holders participating in any underwritten offering shall be responsible for any
underwriting discounts and commissions and fees and, subject to Section 4
hereof, expenses of their own counsel. The Company shall pay all expenses
customarily borne by issuers in an underwritten offering, including but not
limited to filing fees, the fees and disbursements of its counsel and
independent public accountants and any printing expenses incurred in connection
with such underwritten offering. Notwithstanding the foregoing or the provisions
of Section 3(n) hereof, upon receipt of a request from the Managing Underwriter
or a representative of holders of a majority of the Registrable Securities to be
included in an underwritten offering to prepare and file an amendment or
supplement to the Shelf Registration Statement and Prospectus in connection with
an underwritten offering, the Company may delay the filing of any such amendment
or supplement for up to 90 days if the Board of Directors of the Company shall
have determined in good faith that the Company has a bona fide business reason
for such delay.
7. Liquidated Damages.
(a) Notwithstanding any postponement of effectiveness permitted by
Section 2(a) hereof, if (i) on or prior to the 90th day following the Closing
Date, a Shelf Registration Statement has not been filed with the Commission or
(ii) on or prior to the 180th day following the Closing Date, such Shelf
Registration Statement is not declared effective by the Commission (each, a
"Registration Default"), the Company shall be required to pay liquidated damages
("Liquidated Damages"), from and including the day following such Registration
Default until such Shelf Registration Statement is either so filed or so filed
and subsequently declared effective, as applicable, at a rate per annum equal to
an additional one-quarter of one percent (0.25%) of the principal amount of
Registrable Securities, to and including the 90th day following such
Registration Default and one-half of one percent (0.50%) thereof from and after
the 91st day following such Registration Default.
(b) In the event that (i) the Shelf Registration Statement ceases to be
effective, (ii) the Company suspends the use of the Prospectus pursuant to
Section 2(c) or 3(j) hereof, (iii) the Electing Holders are not authorized to
use the Prospectus pursuant to Section 3(g) hereto or (iv) the Electing Holders
are otherwise prevented or restricted by the Company from effecting sales
pursuant to the Shelf Registration Statement and, as a result of the foregoing,
Electing Holders are prevented or restricted from effecting sales pursuant to
the Shelf Registration Statement (an "Effective Failure") for more than 45 days,
whether or not consecutive, in any 90-day period, or for more than 90 days,
whether or not consecutive, during any 12-month period, then the Company shall
pay Liquidated Damages at a rate per annum equal to an additional one-half of
one percent (0.50%) of the principal amount of Registrable Securities from the
46th day of the applicable 90-day period or the 91st day of the applicable
12-month period, as the case may be, that any such Effective Failure has existed
until the earlier of (1) the time the Electing Holders of Registrable Securities
are again able to make sales under the Shelf Registration Statement or (2) the
expiration of the Effectiveness Period. For the purpose of determining whether
an Effective Failure has occurred, days on which the Shelf Registration
Statement ceases to be effective or the Electing Holders are otherwise prevented
or restricted from effecting sales pursuant to the Shelf Registration Statement
solely as a result of (A) the filing with the Commission of a post-effective
amendment to the Shelf Registration Statement for the sole purpose of naming
additional Holders as selling securityholders in the Shelf Registration
Statement and (B) the Company's compliance with Section 3(n) hereof, shall not
be included in determining the 45-day or 90-day periods, as the case may be.
(c) Any amounts to be paid as Liquidated Damages pursuant to paragraphs
(a) or (b) of this Section 7 shall be paid in cash semi-annually in arrears,
with the first semi-annual payment due on the first Interest Payment Date (as
defined in the Indenture), as applicable, following the date of such
Registration Default or Effective Failure, as applicable. Such Liquidated
Damages will accrue (1) in respect of the Securities at the rates set forth in
paragraphs (a) or (b) of this Section 7, as applicable, on the principal amount
of the Securities and (2) in respect of the Common Stock issued upon conversion
of the Securities, at the rates set forth in paragraphs (a) or (b) of this
Section 7, as applicable, applied to the Conversion Price (as defined in the
Indenture) at that time. A Holder will not be entitled to Liquidated Damages
unless it has properly provided all information requested by the Notice and
Questionnaire prior to the date of the Registration Default or Effective
Failure, as the case may be, if the date of the Registration Default or
Effective Failure is after the deadline for the return of the Notice and
Questionnaire.
(d) Except as provided in Section 8(b) hereof, the Liquidated Damages
as set forth in this Section 7 shall be the exclusive monetary remedy available
to the Holders of Registrable Securities for such Registration Default or
Effective Failure. In no event shall the Company be required to pay Liquidated
Damages in excess of the applicable maximum amount of one-half of one percent
(0.50%) set forth above, regardless of whether one or multiple Registration
Defaults or Effective Failures exist.
8. Miscellaneous.
(a) Other Registration Rights. The Company may grant registration
rights that would permit any person that is a third party the right to
piggy-back on any Shelf Registration Statement, provided that if the Managing
Underwriter of any underwritten offering conducted pursuant to Section 6 hereof
notifies the Company and the Electing Holders that the total amount of
securities which the Electing Holders and the holders of such piggy-back rights
intend to include in any Shelf Registration Statement is so large as to
materially threaten the success of such offering (including the price at which
such securities can be sold), then the amount, number or kind of securities to
be offered for the account of holders of such piggy-back rights will be reduced
to the extent necessary to reduce the total amount of securities to be included
in such offering to the amount, number and kind recommended by the Managing
Underwriter prior to any reduction in the amount of Registrable Securities to be
included in such Shelf Registration Statement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company fails to perform any of its
obligations hereunder and that the Purchasers and the Holders from time to time
may be irreparably harmed by any such failure, and accordingly agree that the
Purchasers and such Holders, in addition to any other remedy to which they may
be entitled at law or in equity shall, at any time Securities are convertible
into Common Stock, be entitled to compel specific performance of the obligations
of the Company under this Registration Rights Agreement in accordance with the
terms and conditions of this Registration Rights Agreement, in any court of the
United States or any State thereof having jurisdiction.
(c) Amendments and Waivers. This Agreement, including this Section
8(c), may be amended, and waivers or consents to departures from the provisions
hereof may be given, only by a written instrument duly executed by the Company
and the holders of a majority in aggregate principal amount of Registrable
Securities then outstanding. Each Holder of Registrable Securities outstanding
at the time of any such amendment, waiver or consent or thereafter shall be
bound by any amendment, waiver or consent effected pursuant to this Section
8(c), whether or not any notice, writing or marking indicating such amendment,
waiver or consent appears on the Registrable Securities or is delivered to such
Holder.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be given as provided in the Indenture.
(e) Parties in Interest. The parties to this Agreement intend that all
Holders of Registrable Securities shall be entitled to receive the benefits of
this Agreement and that any Electing Holder shall be bound by the terms and
provisions of this Agreement by reason of such election with respect to the
Registrable Securities which are included in a Shelf Registration Statement. All
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the respective successors and assigns
of the parties hereto and any Holder from time to time of the Registrable
Securities to the aforesaid extent. In the event that any transferee of any
Holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind (other than
the delivery of a properly completed Notice and Questionnaire, to the extent
applicable), be entitled to receive the benefits of and, if an Electing Holder,
be conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement to the aforesaid extent.
(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 an 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. In the event that any one or 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
hereto shall be enforceable to the fullest extent permitted by law.
(j) Survival. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any
Electing Holder, any director, officer or partner of such Holder, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any controlling person of any of the foregoing, and shall survive the transfer
and registration of the Registrable Securities of such Holder.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
Church & Xxxxxx Co., Inc.
By: /s/ XXX XXXXX
-----------------------------
Name: Xxx Xxxxx
Title: Vice President and Chief
Financial Officer
Accepted as of the date hereof:
Xxxxxxx, Sachs & Co.,
X.X. Xxxxxx Securities Inc.,
PNC Capital Markets, Inc.,
Fleet Securities, Inc.,
NatCity Investments, Inc.,
Scotia (USA) Capital Inc.,
By: /s/ XXXXXXX, SACHS & CO.
------------------------
(Xxxxxxx, Xxxxx & Co.)
Appendix A
Church & Xxxxxx Co., Inc.
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: , 2003
The Depository Trust Company ("DTC") has identified you as a
DTC Participant through which beneficial interests in the Church & Xxxxxx Co.,
Inc. (the "Company") 5.25% Convertible Senior Debentures due August 15, 2033
(the "Securities") are held.
The Company is in the process of registering the Securities
under the Securities Act of 1933 for resale by the beneficial owners thereof. In
order to have their Securities included in the registration statement,
beneficial owners must complete and return the enclosed Notice of Registration
Statement and Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities
receive a copy of the enclosed materials as soon as possible as their rights to
have the Securities included in the registration statement depend upon their
returning the Notice and Questionnaire by [Deadline for response]. Please
forward a copy of the enclosed documents to each beneficial owner that holds
interests in the Securities through you. If you require more copies of the
enclosed materials or have any questions pertaining to this matter, please
contact Xxxxx Xxxxx, Church & Xxxxxx Co., Inc., 000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000-0000, (000) 000-0000.
Church & Xxxxxx Co., Inc.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
_________, 2003
Church & Xxxxxx Co., Inc. (the "Company") has filed with the
United States Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (the "Shelf Registration Statement") for the
registration and resale under Rule 415 of the United States Securities Act of
1933, as amended (the "Securities Act"), of the Company's 5.25% Convertible
Senior Debentures due August 15, 2033 (the "Securities") and the shares of
common stock, par value $1.00 per share (the "Common Stock"), issuable upon
conversion thereof, in accordance with the Registration Rights Agreement, dated
as of August 11, 2003 (the "Registration Rights Agreement"), between the Company
and the purchasers named therein. A copy of the Registration Rights Agreement is
attached hereto. All capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Registration Rights Agreement.
In order to have Registrable Securities included in the Shelf
Registration Statement (or a supplement or amendment thereto), this Notice of
Registration Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the Company at the
address set forth herein for receipt ON OR BEFORE [DEADLINE FOR RESPONSE].
Beneficial owners of Registrable Securities who do not properly complete,
execute and return this Notice and Questionnaire by such date (i) will not be
named as selling securityholders in the Shelf Registration Statement and (ii)
may not use the Prospectus forming a part thereof for resales of Registrable
Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of 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 related Prospectus.
The term "Registrable Securities" is defined in the
Registration Rights Agreement to mean all or any portion of the Securities
issued from time to time under the Indenture in registered form and the shares
of Common Stock issuable upon conversion of such Securities; provided, however,
that a security ceases to be a Registrable Security when it is no longer a
Restricted Security.
The term "Restricted Security" is defined in the Registration
Rights Agreement to mean any Security or share of Common Stock issuable upon
conversion thereof except any such Security or share of Common Stock which (i)
has been effectively registered under the Securities Act and sold in a manner
contemplated by the Shelf Registration Statement (or any other registration
statement filed under the Securities Act in respect of the sale of such
Security), (ii) has been transferred in compliance with Rule 144 under the
Securities Act (or any successor provision thereto) or is transferable pursuant
to paragraph (k) of such Rule 144 (or any successor provision thereto), or (iii)
has otherwise been transferred and a new Security or share of Common Stock not
subject to transfer restrictions under the Securities Act has been delivered by
or on behalf of the Company in accordance with Section 3.5 of the Indenture or
(iv) ceases to be outstanding.
ELECTION
The undersigned holder (the "Selling Securityholder") of
Registrable Securities hereby elects to include in the Shelf Registration
Statement the Registrable Securities beneficially owned by it and listed below
in Item (3). The undersigned, by signing and returning this Notice and
Questionnaire, agrees to be bound with respect to such Registrable Securities by
the terms and conditions of this Notice and Questionnaire and the Registration
Rights Agreement, including, without limitation, Section 5 of the Registration
Rights Agreement, as if the undersigned Selling Securityholder were an original
party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and the Trustee the Notice of Transfer (completed and signed) set
forth in Exhibit 1 to this Notice and Questionnaire.
The Selling Securityholder 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:
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(b) Full legal name of registered holder (if not the same as (a) above)
of Registrable Securities listed in Item (3) below:
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(c) Full legal name of DTC Participant (if applicable and if not the same
as (b) above) through which Registrable Securities listed in Item (3)
below are held:
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(d) State whether the Selling Securityholder is a publicly-held entity or
a subsidiary of a publicly-held entity (i.e., an entity that has a
class of securities registered under the Securities Exchange Act of
1934, as amended):
Yes No
--------- ----------
If a subsidiary, please identify the publicly-held parent entity:
----------------------------------------------------
(e) State whether the Selling Securityholder is an investment company, or
a subsidiary of an investment company, registered under the Investment
Company Act of 1940:
Yes No
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If a subsidiary, please identify the investment company parent entity:
----------------------------------------------------
(f) If you answered "No" to questions (d) and (e), state the number of
natural persons who have or share voting or investment control over
the Registrable Securities:
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If your answer is 5 or fewer, please identify those natural persons:
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Please note that the SEC requires that these natural persons be named
in the prospectus.
2. Address for notices to Selling Securityholder:
Telephone:
E-Mail:
Fax:
Contact Person:
3. Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned Selling
Securityholder does not beneficially own any Securities or shares of
Common Stock issued upon conversion of any Securities.
(a) Principal Amount of Registrable Securities (as defined in the
Registration Rights Agreement) beneficially owned:
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CUSIP No(s). of Registrable Securities:
----------------------------
Number of shares of Common Stock (if any) issued upon conversion of
Securities:
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(b) Principal Amount of Securities other than Registrable Securities
beneficially owned:
--------------------------------------------------------------------
--------------------------------------------------------------------
CUSIP No(s). of such other Securities:
----------------------------
Number of shares of Common Stock (if any) issued upon conversion of
such other Securities:
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(c) Principal Amount of Registrable Securities to be included in the
Shelf Registration Statement:
--------------------------------------------------------------------
--------------------------------------------------------------------
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement:
----------------------------
Number of shares of Common Stock (if any) issued upon conversion of
Registrable Securities which are to be included in the Shelf
Registration Statement:
--------------------------------------------------------------------
4. Beneficial Ownership of other securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any shares of
Common Stock or any other security of the Company, other than the
Securities and shares of Common Stock listed above in Item (3).
State any exceptions here:
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5. Relationship with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, 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:
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6. Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder intends
to distribute the Registrable Securities listed above in Item (3) only as
follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. 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 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 Selling Securityholder may enter into hedging
transactions with broker-dealers, which may in turn engage in short sales
of the Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell 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 security holder for purposes of the prospectus.
State any exceptions here:
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Note: In no event may such methods of distribution take the form of an
underwritten offering of the Registrable Securities without the prior consent of
the Company.
(7) (a) State whether the undersigned Selling Securityholder has or will
enter into "hedging transactions".
Yes No
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If yes, you must provide a complete description of the hedging
transactions into which the undersigned Selling Securityholder has
entered or will enter and the purpose of such hedging transactions,
including the extent to which such hedging transactions remain in
place.
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Please note that the SEC may deem short sales of securities covered by a
registration statement prior to the effectiveness of such registration statement
as a violation of Section 5 of the Securities Act.
(b) State whether the undersigned Selling Securityholder has sold any of
the Registrable Securities or shares of common stock of the Company
short since the date of original issuance of the Registrable
Securities.
Yes No
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If yes, you must provide a complete description of the short sale,
including the number of shares of common stock of the Company involved
and whether the short position remains in place.
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(8) (a) State whether the undersigned Selling Securityholder is a registered
broker-dealer.
Yes No
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(b) State whether the undersigned Selling Securityholder received the
Registrable Securities as compensation for underwriting activities
and, if so, provide a brief description of the transaction(s)
involved.
Yes No
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The SEC requires that all Selling Securityholders that are broker-dealers, even
if they did not receive the Registrable Securities as compensation for
underwriting activities, must be named as underwriters in the prospectus for the
Registrable Securities. Selling Securityholders, including those named as
underwriters, must deliver copies of the prospectus to purchasers at or prior to
the time of any sale of the Registrable Securities.
(c) State whether the undersigned Selling Securityholder is an affiliate
of a registered broker-dealer and if so, list the name(s) of the
broker-dealer affiliate(s).
Yes No
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If the answer is "Yes," you must answer question (d) below.
(d) If the undersigned Selling Securityholder is an affiliate of a
registered broker-dealer:
(i) Did the undersigned Selling Securityholder purchase the
Registrable Securities in the ordinary course of business?
Yes No
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If the answer is "No," to question (i) state any exceptions
below:
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(ii) At the time of the purchase of the Registrable Securities, did
the undersigned Selling Securityholder have any agreements or
understandings, directly or indirectly, with any person to
distribute the Registrable Securities?
Yes No
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If the answer is "Yes," to question (ii) state any exceptions
below:
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If the answer is "No" to question (i) or "Yes" to question (ii), you will be
named as an underwriter in the prospectus relating to the Registrable
Securities.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
prospectus delivery and other provisions of the Securities Act and the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder, particularly Regulation M.
In the event that the 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 the Company, the Selling Securityholder agrees
to notify the transferee(s) of its rights and obligations under this Notice and
Questionnaire and the Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of
the information contained herein in its answers to Items (1) through (8) above
and the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section
3(a) of the Registration Rights Agreement to provide such information as may be
required by law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in effect
and to provide any additional information as the Company reasonably may request.
Except as otherwise provided in the Registration Rights Agreement, all notices
hereunder and pursuant to the Registration Rights Agreement shall be made in
writing, by hand-delivery, first-class mail, or air courier guaranteeing
overnight delivery as follows:
(i) To the Company:
Church & Xxxxxx Co., Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxx, Esq., General Counsel
(ii) With a copy to:
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx, Esq.
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above). This Agreement shall be governed in all respects by the laws of the
State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated: Selling Securityholder
--------------------------- (Print/type full legal name of beneficial
owner of Registrable Securities)
By:
-------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE
FOR RECEIPT ON OR BEFORE _________ __, 2003 TO THE COMPANY AT:
Church & Xxxxxx Co., Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxx, Esq., General Counsel
With a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxx, Esq.
Exhibit 1
to Appendix A
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Church & Xxxxxx Co., Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxx, General Counsel
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Re: Church & Xxxxxx Co., Inc. (the "Company")
5.25% Convertible Senior Debentures due August 15, 2033
(the "Debentures")
Dear Sirs:
Please be advised that _____________________ has transferred $___________
aggregate principal amount of the above-referenced Debentures or _______ shares
of the Company's common stock, issued upon conversion of Debentures, pursuant to
an effective Registration Statement on Form S-3 (File No. 333-____) filed by the
Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied with respect to the
transfer described above and that the above-named beneficial owner of the
Debentures or common stock is named as a selling securityholder in the
Prospectus dated ____, 2003 or in amendments or supplements thereto, and that
the aggregate principal amount of the Debentures or number of shares of common
stock transferred are [a portion of] the Debentures or shares of common stock
listed in such Prospectus as amended or supplemented opposite such owner's name.
Dated:
Very truly yours,
------------------------
(Name)
By: ________________________
(Authorized Signature)
