Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") dated as of November
27, 2001, between CENDANT CORPORATION, a Delaware corporation (the "COMPANY"),
and X.X. XXXXXX SECURITIES (the "INITIAL PURCHASER"). This Agreement is made
pursuant to the Purchase Agreement, dated as of November 20, 2001, between the
Company, as the issuer of 3?% Convertible Senior Debentures due 2011, and the
Initial Purchaser. The Debentures are to be issued pursuant to the provisions of
an Indenture dated as of November 27, 2001 between the Company and The Bank of
Nova Scotia Trust Company of New York, as trustee (the "TRUSTEE"). The Indenture
will provide that the Debentures will be convertible into fully paid,
nonassessable shares of CD common stock, par value $0.01 per share, of the
Company on the terms, and subject to the conditions, set forth in the Indenture.
To induce the Initial Purchaser to purchase the Debentures, the Company has
agreed to provide the registration rights set forth in this Agreement.
1. CERTAIN DEFINITIONS.
For purposes of this Registration Rights Agreement, the following terms
shall have the following respective meanings:
(a) "APPLICABLE CONVERSION PRICE" means, as of any date of
determination, the Applicable Principal Amount per $1,000 principal
amount of Debentures as of such date of determination divided by the
Conversion Rate in effect as of such date of determination or, if no
Debentures are then outstanding, the Conversion Rate that would be in
effect were such Debentures then outstanding without giving effect to
any upward interest adjustment provisions.
(b) "APPLICABLE PRINCIPAL AMOUNT" means, as of any date of
determination, with respect to each $1,000 principal amount at maturity
of Debentures, the sum of the principal amount of such Debentures plus
accrued and unpaid interest (excluding any accrued and unpaid interest
payable as cash interest) with respect to such Debentures through such
date of determination or, if no Debentures are then outstanding, such
sum calculated as if such Debentures were then outstanding.
(c) "BUSINESS DAY" means each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking institutions in
The City of New York are authorized or obligated by law or executive
order to close.
(d) "CLOSING DATE" means the date on which the Debentures are
initially issued.
(e) "COMMISSION" means the 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.
(f) "CONVERSION RATE" shall have the meaning assigned such
term in the Indenture.
(g) "DEBENTURES" means the 3?% Convertible Senior Debentures
due 2011, to be issued under the Indenture and sold by the Company to
the Initial Purchaser, and securities (other than the Shares) of the
Company issued in exchange therefor or in lieu thereof pursuant to the
Indenture.
(h) "DEFERRAL NOTICE" has the meaning assigned thereto in
Section 3(g).
(i) "DEFERRAL PERIOD" has the meaning assigned thereto in
Section 3(g).
(j) "EFFECTIVE TIME" means the time and date as of which the
Commission declares the Shelf Registration effective or as of which the
Shelf Registration otherwise becomes effective.
(k) "EXCHANGE ACT" means the Securities Exchange Act of 1934,
or any successor thereto, as the same shall be amended from time to
time.
(l) "HOLDER" means the Initial Purchaser for so long as it
owns any Registrable Securities, and such of its respective successors
and assigns who acquire Registrable Securities, directly or indirectly,
from such person or from any successor or assign of such person, in
each case for so long as such person owns any Registrable Securities.
(m) "INDENTURE" means the Indenture dated as of November 27,
2001, between the Company and The Bank of Nova Scotia Trust Company of
New York, as Trustee, as the same shall be amended from time to time.
(n) "MATERIAL EVENT" has the meaning assigned thereto in
Section 3(b)(vi).
(o) "NOTICE AND QUESTIONNAIRE" means a written notice
delivered to the Company containing substantially the information
called for by the Selling Security Holder Notice and Questionnaire
attached as Annex A hereto.
(p) "NOTICE HOLDER" means, on any date, any Holder of the
Registrable Securities that has delivered a completed and signed Notice
and Questionnaire to the Company on or prior to such date.
(q) "NOTICE OF TRANSFER" shall mean a Notice of Transfer
pursuant to a Shelf Registration Statement substantially in the form of
Annex B hereto.
(r) "PERSON" means a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
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(s) "PROSPECTUS" means the prospectus included in any Shelf
Registration, as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials
incorporated by reference or explicitly deemed to be incorporated by
reference in such Prospectus.
(t) "PURCHASE AGREEMENT" means the Purchase Agreement dated as
of November 20, 2001 between the Company and the Initial Purchaser.
(u) "REGISTRABLE SECURITIES" means the Securities; PROVIDED,
HOWEVER, that such Securities shall cease to be Registrable Securities
when (i) in the circumstances contemplated by Section 2(a) of this
Agreement, a registration statement registering such Securities under
the Securities Act has been declared or becomes effective and such
Securities have been sold or otherwise transferred by the Holder
thereof pursuant to such effective registration statement; (ii) such
Securities are sold pursuant to Rule 144 under circumstances in which
any legend borne by such Securities relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is
removed or such Securities are eligible to be sold pursuant to
paragraph (k) of Rule 144; or (iii) such Securities shall cease to be
outstanding (including, in the case of the Debentures, upon conversion
into Shares).
(v) "REGISTRATION DEFAULT" has the meaning assigned thereto in
Section 2(c).
(w) "REGISTRATION DEFAULT DAMAGES" has the meaning assigned
thereto in Section 2(c).
(x) "REGISTRATION EXPENSES" shall mean any and all expenses
incident to performance of or compliance by the Company with this
Agreement, including without limitation: (i) all Commission or National
Association of Securities Dealers, Inc. (the "NASD") registration and
filing fees; (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws (including reasonable
fees and disbursements of counsel for any underwriters or Holders in
connection with blue sky qualification of any of the Registrable
Securities) and compliance with the rules of the NASD; (iii) all
expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any registration statement, any
Prospectus and any amendments or supplements thereto, and in preparing
or assisting in preparing, printing and distributing any registration
statement, any Prospectus and any amendments or supplements thereto,
and in preparing or assisting in preparing, printing and distributing
any underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this
Agreement; (iv) any fees charged by securities rating services for
rating the Securities as required by the Indenture; (v) the fees and
disbursements of counsel for the Company and of the independent
certified public accountants of the Company, including the expenses of
any "comfort" letters required by or incident to such performance and
compliance; (vi) the fees and expenses of the Trustee, and any paying
agent, exchange agent or custodian; (vii) all fees and expenses
incurred in connection with the listing, if any, of any of the
Debentures on any securities exchange or exchanges; and (viii) the
reasonable fees and expenses of any experts retained by the Company in
connection with the registration statement.
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(y) "RESALE PERIOD" means the period beginning on the date the
Shelf Registration becomes effective and ending on the earlier of (i)
the date the Shelf Registration ceases to be effective or (ii) the
second anniversary of the Closing Date or any later closing date for
the sale of Optional Securities (as defined in the Purchase Agreement).
(z) "RESTRICTED HOLDER" means (i) a Holder that is an
affiliate of the Company within the meaning of Rule 405 or (ii) a
broker-dealer who receives Securities for its own account but did not
acquire the Securities as a result of market-making activities or other
trading activities.
(aa) "RULE 144," "RULE 405" and "RULE 415" means, in each
case, such rule promulgated under the Securities Act.
(bb) "SECURITIES" means, collectively, the Debentures and the
Shares.
(cc) "SECURITIES ACT" means the Securities Act of 1933, as
amended.
(dd) "SHARES" means the shares of CD common stock of the
Company, par value $.01 per share, into which the Debentures are
convertible pursuant to the Indenture or that have been issued upon any
conversion of the Debentures into CD common stock of the Company.
(ee) "SHELF REGISTRATION" has the meaning assigned thereto in
Section 2(a).
(ff) "TRUST INDENTURE ACT" means the Trust Indenture Act of
1939, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to
time.
(gg) "UNDERWRITING MAJORITY" means on any date, Holders
holding at least 66 2/3% of the aggregate principal amount of the
Registrable Securities outstanding on such date; PROVIDED, that for the
purpose of this definition, a holder of Shares that constitute
Registrable Securities and issued upon conversion of Debentures shall
be deemed to hold an aggregate principal amount of Registrable
Securities (in addition to the principal amount of Debentures held by
such holder) equal to the quotient of (x) the number of Shares that are
Registrable Securities held by such holder and (y) the then Applicable
Conversion Price.
(hh) "UNDERWRITTEN OFFERING" means a registration in which
securities of the Company are sold to an underwriter for reoffering to
the public.
Unless the context otherwise requires, any reference herein to a
"SECTION" or "CLAUSE" refers to a Section or clause, as the case may be, of this
Agreement, and the words "HEREIN," "HEREOF" and "HEREUNDER" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended from time to
time.
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2. REGISTRATION UNDER THE SECURITIES ACT.
(a) The Company agrees to file under the Securities Act as
promptly as practicable but in any event within 90 days after the
Closing Date a "shelf" registration statement providing for the
registration of, and the sale on a continuous or delayed basis by the
Holders of, all of the Registrable Securities, pursuant to Rule 415 or
any similar rule that may be adopted by the Commission (such
registration, the "SHELF REGISTRATION" and such registration statement,
the "SHELF REGISTRATION STATEMENT"). The Company agrees to use its
reasonable best efforts to cause the Shelf Registration Statement to
become or be declared effective within 180 days after the Closing Date
and to keep such Shelf Registration Statement continuously effective
for a period ending on the earlier of (i) the time when the Debentures
covered by the Shelf Registration Statement may be sold pursuant to
Rule 144 under the Securities Act (assuming that no Holder at such date
or within the three-month period preceding such date was an affiliate
of the Company) without any limitations under clauses (c), (e), (f) and
(h) of Rule 144 under the Securities Act or (ii) the date on which all
Registrable Securities registered thereunder are disposed of in
accordance with the Shelf Registration. The Company further agrees to
supplement or make amendments to the Shelf Registration Statement, as
and when required by the rules, regulations or instructions applicable
to the registration form used for such Shelf Registration Statement or
by the Securities Act or rules and regulations thereunder for shelf
registration, and the Company agrees to furnish to the Holders of the
Registrable Securities copies of any such supplement or amendment upon
request following its filing with the Commission.
(b) Each Holder of Registrable Securities agrees that if such
Holder wishes to sell Registrable Securities pursuant to a Shelf
Registration Statement and related Prospectus, it will do so only in
accordance with this Section 2(b) and Section 3(g) of this Agreement.
Each Holder of Registrable Securities wishing to sell Registrable
Securities pursuant to a Shelf Registration Statement and related
Prospectus agrees to deliver a Notice and Questionnaire to the Company
at least three (3) Business Days prior to any intended distribution of
Registrable Securities under the Shelf Registration. From and after the
date the Shelf Registration Statement is declared effective, the
Company shall, from time to time after the date a Notice and
Questionnaire is delivered, (i) if required by applicable law, file
with the Commission a post-effective amendment to the Shelf
Registration Statement or prepare and, if required by applicable law,
file a supplement to the related Prospectus or a supplement or
amendment to any document incorporated therein by reference or file any
other required document so that the Holder delivering such Notice and
Questionnaire is named as a selling security Holder in the Shelf
Registration Statement and the related Prospectus in such a manner as
to permit such Holder to deliver such Prospectus to purchasers of the
Registrable Securities in accordance with applicable law and, if the
Company shall file a post-effective amendment to the Shelf Registration
Statement, the Company shall use its reasonable best efforts to cause
such post-effective amendment to be declared effective under the
Securities Act as promptly as is practicable; (ii) provide such Holder
copies of any documents filed pursuant to Section 2(b)(i) upon written
request; and (iii) notify such Holder as promptly as practicable after
the effectiveness under the Securities Act of any post-effective
amendment filed pursuant to Section 2(b)(i); PROVIDED that if such
Notice
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and Questionnaire is delivered during a Deferral Period, the Company
shall so inform the Holder delivering such Notice and Questionnaire and
shall take the actions set forth in clauses (i), (ii) and (iii) above
upon expiration of the Deferral Period in accordance with Section 3(g)
of this Agreement. Notwithstanding anything contained herein to the
contrary, the Company shall be under no obligation to name any Holder
that is not a Notice Holder as a selling security Holder in any Shelf
Registration Statement or related Prospectus; provided, however, that
any Holder that becomes a Notice Holder pursuant to the provisions of
this Section 2(b) (whether or not such Holder was a Notice Holder at
the time the Shelf Registration Statement was declared effective) shall
be named as a selling security Holder in the Shelf Registration
Statement or related Prospectus in accordance with the requirements of
this Section 2(b).
(c) If any of the following events (any such event a
"REGISTRATION DEFAULT") shall occur, then liquidated damages (the
"REGISTRATION DEFAULT DAMAGES") shall become payable in respect of the
Securities (in addition to the interest otherwise due on the
Securities) as follows:
(i) if the Shelf Registration Statement is not filed
with the Commission within 90 days after the Closing Date,
then commencing on the 91st day after the Closing Date,
Registration Default Damages shall accrue on the Applicable
Principal Amount of any outstanding Debentures that are
Registrable Securities and the Applicable Conversion Price of
any outstanding Shares that are Registrable Securities at a
rate of 0.25% per annum for the first 90 days following such
91st day and an additional 0.25% per annum at the beginning of
each subsequent 90-day period; or
(ii) if the Shelf Registration Statement is not
declared effective by the Commission on or prior to the 180th
day following the Closing Date, then commencing on the 181st
day after the Closing Date, Registration Default Damages shall
accrue on the Applicable Principal Amount of any outstanding
Debentures that are Registrable Securities and the Applicable
Conversion Price of any outstanding Shares that are
Registrable Securities at a rate of 0.25% per annum for the
first 90 days following such 181st day and an additional 0.25%
per annum at the beginning of each subsequent 90-day period;
or
(iii) if the Shelf Registration Statement has been
declared effective but such Shelf Registration Statement
ceases to be effective (other than pursuant to Section 3(g) of
this Agreement) at any time prior to the earlier of (A) the
time when the Debentures covered by the Shelf Registration
Statement may be sold pursuant to Rule 144 under the
Securities Act (assuming that no Holder at such date or within
the three-month period preceding such date was an affiliate of
the Company) without any limitations under clauses (c), (e),
(f) and (h) of Rule 144 under the Securities Act or (B) the
date at which all Registrable Securities registered under the
Shelf Registration Statement are disposed of in accordance
therewith, then commencing on the day such Shelf Registration
Statement ceases to be effective, Registration Default Damages
shall accrue on the Applicable Principal Amount of any
outstanding Debentures that are Registrable Securities and the
Applicable Conversion Price of any outstanding Shares that are
Registrable Securities at a rate of 0.25% per annum for the
first 90 days following such date on which the Shelf
Registration ceases to be effective and an additional 0.25%
per annum at the beginning of each subsequent 90-day period;
or
(iv) if the aggregate duration of Deferral Periods in
any period exceeds the number of days permitted in respect of
such period pursuant to Section 3(g) of this Agreement, then
commencing on the day the aggregate duration of Deferral
Periods in any period exceeds the number of days permitted in
respect of such period, Registration Default Damages shall
accrue on the Applicable Principal Amount of any outstanding
Debentures that are Registrable Securities
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and the Applicable Conversion Price of any outstanding Shares
that are Registrable Securities at a rate of 0.25% per annum
for the first 90 days and an additional 0.25% per annum at the
beginning of each subsequent 90-day period;
PROVIDED, HOWEVER, that the Registration Default Damages rate on the
Securities shall not exceed in the aggregate 1.00% per annum; PROVIDED
FURTHER, HOWEVER, that (1) upon the filing of the Shelf Registration
Statement (in the case of clause (i) above), (2) upon the effectiveness
of the Shelf Registration Statement (in the case of clause (ii) above),
(3) upon the effectiveness of the Shelf Registration Statement which
had ceased to remain effective (in the case of clause (iii) above), (4)
upon the termination of the Deferral Period that caused the limit on
the aggregate duration of Deferral Periods in a period set forth in
Section 3(g) to be exceeded (in the case of clause (iv) above) or (5)
upon the termination of certain transfer restrictions on the Securities
as a result of the application of Rule 144(k), Registration Default
Damages on the Securities as a result of such clause, as the case may
be, shall cease to accrue.
(d) EXPENSES. The Company shall pay all Registration Expenses
in connection with the registration pursuant to Section 2(a) hereof.
Each Holder shall pay all expenses of its counsel, underwriting
discounts and commissions and transfer taxes, if any, relating to the
sale or disposition of such Holder's Registrable Securities pursuant to
the Shelf Registration.
(e) Any reference herein to a registration statement shall be
deemed to include any document incorporated therein by reference as of
the applicable Effective Time and any reference herein to any
post-effective amendment to a registration statement shall be deemed to
include any document incorporated therein by reference as of a time
after such Effective Time.
(f) Notwithstanding any other provision of this Agreement, a
Holder of Registrable Securities who does not comply with the
provisions of Section 2(b), if applicable, shall not be entitled to
receive Registration Default Damages unless and until such Holder
complies with the provisions of such section, if applicable.
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3. REGISTRATION PROCEDURES.
The following provisions shall apply to a registration statement filed
pursuant to Section 2 of this Agreement:
(a) At the Effective Time of the Shelf Registration, the
Company shall qualify the Indenture under the Trust Indenture Act.
(b) In connection with the Company's obligations with respect
to the Shelf Registration, the Company shall:
(i) prepare and file with the Commission a
registration statement with respect to the Shelf Registration
on any form which may be utilized by the Company and which
shall permit the disposition of the Registrable Securities in
accordance with the intended method or methods thereof, as
specified in writing by the Holders of the Registrable
Securities, and use its reasonable best efforts to cause such
registration statement to become effective in accordance with
Section 2(a) above;
(ii) prepare and file with the Commission such
amendments and supplements to such registration statement and
the Prospectus included therein as may be necessary to effect
and maintain the effectiveness of such registration statement
for the period specified in Section 2(a) above and as may be
required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
registration statement, and furnish to the Holders of the
Registrable Securities, upon written request, copies of any
such supplement or amendment promptly following its being used
or filed with the Commission;
(iii) comply, as to all matters within the Company's
control, with the provisions of the Securities Act with
respect to the disposition of all of the Registrable
Securities covered by such registration statement in
accordance with the intended methods of disposition by the
Holders thereof provided for in such registration statement;
(iv) provide to any of (A) the Holders of the
Registrable Securities to be included in such registration
statement, (B) the underwriters (which term, for purposes of
this Agreement, shall include a person deemed to be an
underwriter within the meaning of Section 2(11) of the
Securities Act), if any, thereof, (C) the sales or placement
agent, if any, therefor, (D) counsel for such underwriters or
agent and (E) not more than one counsel for all the Holders of
such Registrable Securities who so request of the Company in
writing the opportunity to participate in the preparation of
such registration statement, upon written request, each
Prospectus included therein or filed with the Commission and
each amendment or supplement thereto;
(v) for a reasonable period prior to the filing of
the Shelf Registration Statement, and throughout the period
specified in Section 2(a), make reasonably
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available during normal business hours by a representative of
the Holders of the Registrable Securities and the other
persons referred to in Section 3(b)(iv) above, such financial
and other information and books and records of the Company,
and cause the officers, employees, counsel and independent
certified public accountants of the Company to respond to such
inquiries, as shall be reasonably necessary, in the judgment
of the respective counsel referred to in such Section, to
conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; PROVIDED, HOWEVER, that each
such party shall be required to maintain in confidence and not
to disclose to any other person any information or records
reasonably designated by the Company in writing as being
confidential, until such time as (A) such information becomes
a matter of public record (whether by virtue of its inclusion
in such registration statement or otherwise), or (B) such
person shall be required so to disclose such information
pursuant to a subpoena or order of any court or other
governmental agency or body having jurisdiction over the
matter (subject to the requirements of such order, and only
after such person shall have given the Company prompt prior
written notice of such requirement and the opportunity to
contest the same or seek an appropriate protective order), or
(C) such information is required to be set forth in such
registration statement or the Prospectus included therein or
in an amendment to such registration statement or an amendment
or supplement to such Prospectus in order that such
registration statement, Prospectus, amendment or supplement,
as the case may be, does not contain an untrue statement of a
material fact or omit to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading;
(vi) promptly notify the selling Holders of
Registrable Securities, the sales or placement agent, if any,
therefor and the managing underwriter or underwriters, if any,
thereof named in the Shelf Registration Statement or a
supplement thereto, and confirm such notice in writing, (A)
when such registration statement or the Prospectus included
therein or any Prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to
such registration statement or any post-effective amendment,
when the same has become effective, (B) of the issuance by the
Commission of any stop order suspending the effectiveness of
such registration statement or the initiation or written
threat of any proceedings for that purpose, (C) of the receipt
by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities
for sale in any jurisdiction or the initiation or written
threat of any proceeding for such purpose, (D) of the
occurrence of (but not the nature of or details concerning)
any event or the existence of any fact (a "MATERIAL EVENT") as
a result of which any Shelf Registration Statement shall
contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or
any Prospectus shall contain any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made,
not misleading (provided, however, that no notice by the
Company shall be required pursuant to this clause (E) in the
event that the Company either
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promptly files a Prospectus supplement to update the
Prospectus or a Current Report on Form 8-K or other
appropriate Exchange Act report that is incorporated by
reference into the Shelf Registration Statement, which, in
either case, contains the requisite information with respect
to such Material Event that results in such Shelf Registration
Statement no longer containing any untrue statement of
material fact or omitting to state a material fact necessary
to make the statements contained therein not misleading), (F)
of the determination by the Company that a post-effective
amendment to a Shelf Registration Statement will be filed with
the Commission, which notice may, at the discretion of the
Company (or as required pursuant to Section 3(g)), state that
it constitutes a Deferral Notice, in which event the
provisions of Section 3(g) shall apply or (G) at any time when
a Prospectus is required to be delivered under the Securities
Act, that such registration statement, Prospectus, Prospectus
supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder;
(vii) use all reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto
at the earliest practicable date;
(viii) if requested in writing by any managing
underwriter or underwriters, any placement or sales agent or
any Holder of Registrable Securities, promptly incorporate in
a Prospectus supplement or post-effective amendment such
information as is required by the applicable rules and
regulations of the Commission relating to the terms of the
sale of such Registrable Securities, including information
with respect to the principal amount at maturity or number of
Registrable Securities being sold by such Holder or agent or
to any underwriters, the name and description of such Holder,
agent or underwriter, the offering price of such Registrable
Securities and any discount, commission or other compensation
payable in respect thereof, the purchase price being paid
therefor by such underwriters and with respect to any other
terms of the offering of the Registrable Securities to be sold
by such Holder or agent or to such underwriters; and make all
required filings of such Prospectus supplement or
post-effective amendment promptly after notification of the
matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(ix) upon written request, furnish to each Holder of
Registrable Securities, each placement or sales agent, if any,
therefor, each underwriter, if any, thereof and the respective
counsel referred to in Section 3(b)(iv), an executed copy (or,
in the case of a Holder of Registrable Securites, a conformed
copy) of such registration statement, each such amendment or
supplement thereto (in each case including all exhibits
thereto) and such number of copies of such registration
statement (excluding exhibits thereto) and of the Prospectus
included in such registration statement (including each
preliminary Prospectus and any summary Prospectus), in
conformity in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture Act
and the rules and
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regulations of the Commission thereunder; and the Company
hereby consents to the use of such Prospectus (including any
such preliminary or summary Prospectus) and any amendment or
supplement thereto by each such Holder and by any such agent
and underwriter, in each case in the form most recently
provided to such person by the Company in connection with the
offering and sale of the Registrable Securities covered by the
Prospectus (including any such preliminary Prospectus) or any
supplement or amendment thereto; and
(x) use all reasonable efforts to (A) register or
qualify the Registrable Securities to be included in such
registration statement under such securities laws or blue sky
laws of such United States jurisdictions as any Holder of such
Registrable Securities and each placement or sales agent, if
any, therefor and underwriter, if any, thereof shall
reasonably request, and (B) keep such registrations or
qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein
in such jurisdictions during the period the Shelf Registration
Statement is required to remain effective under Section 2(a)
and for so long as may be necessary to enable any such Holder,
agent or underwriter to complete its distribution of
Securities pursuant to such registration statement but in any
event not later than the date through which the Company is
required to keep the Shelf Registration Statement effective
pursuant to Section 2(a); PROVIDED, HOWEVER, that the Company
shall not be required for any such purpose to (1) qualify as a
foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of
this Section 3(b)(x), (2) consent to general service of
process in any such jurisdiction or (3) make any changes to
its certificate of incorporation or by-laws or any agreement
between it and its stockholders.
In case any of the foregoing obligations is dependent upon information
provided or to be provided by a party other than the Company, such
obligation shall be subject to the provision of such information by
such party; provided that the Company shall use its commercially
reasonable efforts to obtain the necessary information from any party
responsible for providing such information.
(c) In the event that the Company would be required, pursuant
to Section 3(b)(vi)(D), to notify the selling Holders of Registrable
Securities, the placement or sales agent, if any, therefor or the
managing underwriters, if any, thereof named in the Shelf Registration
or a supplement thereto of the existence of the circumstances described
therein, the Company shall prepare and furnish to each of the selling
Holders, to each placement or sales agent, if any, and to each such
underwriter, if any, a reasonable number of copies of a Prospectus
supplemented or amended so that, as thereafter delivered to purchasers
of Registrable Securities, such Prospectus shall conform in all
material respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and shall not 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 in
light of the circumstances then existing. Each selling Holder of
Registrable Securities agrees that upon receipt of any notice from the
Company, pursuant to Section 3(b)(vi)(D), such
11
Holder shall forthwith discontinue (and cause any placement or sales
agent or underwriters acting on their behalf to discontinue) the
disposition of Registrable Securities pursuant to the registration
statement applicable to such Registrable Securities until such Holder
(i) shall have received copies of such amended or supplemented
Prospectus and, if so directed by the Company, such Holder shall
deliver to the Company (at the Company's expense) all copies, other
than permanent file copies, then in such Holder's possession of the
Prospectus covering such Registrable Securities at the time of receipt
of such notice or (ii) shall have received notice from the Company that
the disposition of Registrable Securities pursuant to the Shelf
Registration may continue.
(d) In addition to the information required to be provided by
each selling Holder in its Notice and Questionnaire, the Company may
require each Holder of Registrable Securities as to which any
registration pursuant to Section 2(a) is being effected to furnish to
the Company such information regarding such Holder and such Holder's
intended method of distribution of such Registrable Securities as the
Company may from time to time reasonably request in writing, but only
to the extent that such information is required in order to comply with
the Securities Act or state securities of blue sky laws. Each such
Holder agrees to notify the Company as promptly as practicable of any
inaccuracy or change in information previously furnished by such Holder
to the Company or of the occurrence of any event in either case as a
result of which any Prospectus relating to such registration contains
or would contain an untrue statement of a material fact regarding such
Holder or such Holder's intended method of disposition of such
Registrable Securities or omits to state any material fact regarding
such Holder or such Holder's intended method of disposition of such
Registrable Securities required to be stated therein or necessary to
make the statements therein not misleading, and promptly to furnish to
the Company any additional information required to correct and update
any previously furnished information or required so that such
Prospectus shall not contain, with respect to such Holder or the
disposition of such Registrable Securities, 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 in
light of the circumstances then existing. Each such Holder further
agrees that in the event the amount of Registrable Securities that are
beneficially owned by such Holder and are registered pursuant to such
Shelf Registration Statement is reduced due to a sale of such
Registrable Securities under such Registration, such Holder shall
deliver to the Company and the Trustee, at the time of such sale, a
Notice of Transfer.
(e) Until the earlier of (i) the expiration of two years after
the Closing Date or (ii) such time as the Shelf Registration has become
or been declared effective by the Commission, the Company will not, and
will not permit any of its "affiliates" (as defined in Rule 144 under
the Securities Act) to, resell any of the Securities which constitute
"restricted securities" under Rule 144 under the Securities Act that
have been reacquired by any of them, except for Securities purchased by
the Company or any of its affiliates and resold in a transaction
registered under the Securities Act.
(f) Upon the occurrence of a Material Event, the Company shall
as promptly as practicable prepare and file a post-effective amendment
to the Shelf Registration Statement or a supplement to the related
Prospectus or any document incorporated therein
12
by reference or file any other required document that would be
incorporated by reference into such Shelf Registration Statement and
related Prospectus so that such Shelf Registration Statement does not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and such Prospectus does not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Shelf Registration Statement, use all
commercially reasonable efforts to cause it to be declared effective by
the Commission as promptly as is reasonably practicable.
(g) Upon the occurrence or existence of any pending corporate
development or any other Material Event that, in the sole judgment of
the Company, makes it appropriate to suspend the availability of the
Shelf Registration Statement and the related Prospectus, the Company
shall give notice (without notice of the nature or details of such
events) to the Notice Holders that the availability of the Shelf
Registration Statement is suspended (a "DEFERRAL NOTICE") and, upon
receipt of any Deferral Notice, each Notice Holder agrees not to sell
any Registrable Securities pursuant to the Shelf Registration Statement
until such Notice Holder's receipt of copies of the supplemented or
amended Prospectus provided for in Section 3(f) above, or until it is
advised in writing by the Company that the Prospectus may be used, and
has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus.
The period during which the availability of the Shelf Registration
Statement and any Prospectus is suspended (the "DEFERRAL PERIOD")
shall, without the Company incurring any obligation to pay liquidated
damages pursuant to Section 2(c) above, not exceed forty-five (45) days
in any three (3) month period or ninety (90) days in any twelve (12)
month period.
4. HOLDER'S OBLIGATIONS.
Each Holder agrees, by acquisition of the Registrable Securities, that
no Holder of Registrable Securities shall be entitled to sell any of such
Registrable Securities pursuant to a Shelf Registration or to receive a
Prospectus relating thereto, unless such Holder has furnished the Company with a
Notice and Questionnaire as required pursuant to Section 2(b) hereof (including
the information required to be included in such Notice and Questionnaire) and
the information set forth in the next sentence. Each Notice Holder agrees
promptly to furnish to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such Notice
Holder not misleading and any other information regarding such Notice Holder and
the distribution of such Registrable Securities as may be required to be
disclosed in the Shelf Registration Statement under applicable law or pursuant
to the Commission comments. Each Holder further agrees not to sell any
Registrable Securities pursuant to the Shelf Registration without delivering, or
causing to be delivered, a Prospectus to the purchaser thereof and, following
termination of the Effectiveness Period, to notify the Company, within 10
business days of request, of the amount of Registrable Securities sold pursuant
to the Shelf Registration and, in the absence of a response, the Company may
assume that all of the Holder's Registrable Securities were so sold.
13
5. UNDERWRITTEN OFFERINGS.
(a) The Underwriting Majority may sell its Registrable
Securities in an Underwritten Offering pursuant to the Shelf
Registration only with the Company's consent, which consent may be
granted or withheld in the Company's sole discretion.
(b) PARTICIPATION OF HOLDERS. No holder may participate in any
Underwritten Offering hereunder unless such Holder:
(i) agrees to sell such Holder's Registrable
Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to
approve such arrangements; and
(ii) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents reasonably
required under the terms of such underwriting arrangements.
(c) SELECTION OF UNDERWRITERS. In any such Underwritten
Offering, the investment banker or investment bankers and manager or
managers that will administer the offering shall be designated by the
Company, subject to the consent of Holders holding at least a majority
in aggregate principal amount of the Registrable Securities to be
included in such Underwritten Offering (which shall not be unreasonably
withheld or delayed); PROVIDED that such Holders shall be responsible
for all underwriting commissions and discounts in connection therewith.
6. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to, and agrees with, the Initial
Purchaser and each of the Holders from time to time of Registrable Securities
that:
(a) Each registration statement covering Registrable
Securities and each Prospectus (including any preliminary or summary
Prospectus) contained therein or furnished pursuant to Section 3(c)
hereof and any further amendments or supplements to any such
registration statement or Prospectus, when it becomes effective or is
filed with the Commission, as the case may be, and, in the case of an
underwritten offering of Registrable Securities, at the time of the
closing under the underwriting agreement relating thereto, will conform
in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and will not 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 at all times subsequent to the Effective Time when a
Prospectus would be required to be delivered under the Securities Act,
other than from (i) such time as a notice has been given to Holders of
Registrable Securities pursuant to Section 3(b)(vi)(D) hereof until
(ii) such time as the Company furnishes an amended or supplemented
Prospectus pursuant to Section 3(c) hereof or such time as the Company
14
provides notice that offers and sales pursuant to the Shelf
Registration may continue, each such registration statement, and each
Prospectus (including any summary Prospectus) contained therein or
furnished pursuant to Section 3(b) hereof, as then amended or
supplemented, will conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder; PROVIDED, HOWEVER,
that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of a Holder of
Registrable Securities expressly for use therein.
(b) Any documents incorporated by reference in any Prospectus
referred to in Section 6(a) hereof, when they become or became
effective or are or were filed with the Commission, as the case may be,
will conform or conformed in all material respects to the requirements
of the Securities Act or the Exchange Act, as applicable, and none of
such documents will contain or contained an untrue statement of a
material fact or will omit or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, PROVIDED, HOWEVER, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by or on behalf of a Holder of Registrable Securities expressly for use
therein.
(c) The compliance by the Company with all of the provisions
of this Agreement and the consummation of the transactions herein
contemplated will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or, except to
the extent that any such contravention would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole,
any indenture or instrument relating to indebtedness for money borrowed
or any agreement to which the Company is a party or any order, rule,
regulation or decree of any court or governmental agency or authority
located in the United States having jurisdiction over the Company or
any property of the Company; and, to the best knowledge of the Company,
no consent, authorization or order of, or filing or registration with,
any court or governmental agency or authority is required for the
consummation by the Company of the transactions contemplated by this
Agreement, except the registration under the Securities Act
contemplated hereby, qualification of the Indenture under the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under State
securities or blue sky laws.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
7. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall, and it
hereby agrees to, indemnify and hold harmless each of the Holders of
Registrable Securities included in a Shelf Registration Statement, and
each person who is named in such Shelf Registration Statement or a
supplement thereto as an underwriter in any offering or sale
15
of such Registrable Securities and each person who controls any such
person (each, a "PARTICIPANT") against ANY losses, claims, damages or
liabilities, joint or several, to which such Participant may become
subject under the Securities Act or otherwise, and to reimburse such
Participant for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any actions, insofar as
such losses, claims, damages, 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 any registration statement
under which such Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to any such Participant,
or any amendment or supplement thereto, or arise out of or are based
upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made not
misleading; PROVIDED, HOWEVER, that the Company shall not be liable to
any such Participant in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, or preliminary, final or
summary prospectus, or amendment or supplement thereto, in reliance
upon and in conformity with written information furnished to the
Company by or on behalf of such Participant expressly for use therein.
This indemnity with respect to the Prospectus shall not inure to the
benefit of any Participant on account of any losses, claims, damages,
liabilities or actions arising from the sale of Registrable Securities
to any person if a copy of the Prospectus, as the same may then be
amended or supplemented, shall not have been sent or given by or on
behalf of such Participant to such person with or prior to the written
confirmation of the sale involved and if the Prospectus (as so amended
or supplemented) would have corrected the defect giving rise to such
loss, liability, claim or damage.
(b) INDEMNIFICATION BY PARTICIPANTS. The Company may require,
as a condition to including any Registrable Securities in any
registration statement filed pursuant to Section 2(a) hereof and to
entering into any underwriting agreement with respect thereto, that it
shall have received an undertaking reasonably satisfactory to it from
the Holders of such Registrable Securities and from each underwriter
named in any such underwriting agreement, severally and not jointly, to
(i) indemnify and hold harmless the Company and all other holders of
Registrable Securities, against any losses, claims, damages or
liabilities to which the Company or such other holders of Registrable
Securities 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
registration statement, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to any Holder, agent or
underwriter, 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, 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 Holder or underwriter expressly for use therein, and
(ii) reimburse the Company for any legal or other expenses reasonably
16
incurred by it in connection with investigating or defending any such
action or claim as such expenses are incurred; PROVIDED, HOWEVER, that
no such Holder shall be required to undertake liability to any person
under this Section 7(b) 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 pursuant to such registration.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party under Section 7(a) or (b) 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 such
subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying
party will not relieve the indemnifying party from any liability which
it may have to any indemnified party otherwise than under Section 7(a)
or (b). In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party; PROVIDED
that, if the defendants in any such action include both the indemnified
party and the indemnifying party and representation of both parties by
the same counsel would be inappropriate due to actual or potential
conflicting interests between them, the indemnified party or parties
shall have the right to select separate counsel to participate in the
defense of such action on behalf of such indemnified party or parties.
Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under Section 7(a) or (b)
for any legal or other expenses subsequently incurred by such
indemnified party (other than reasonable costs of investigation) in
connection with the defense thereof unless (i) the indemnified party
shall have employed separate counsel in connection with the assertion
of legal defenses in accordance with the proviso to the immediately
preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate
counsel, approved by the indemnifying party, representing the
indemnified parties who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be
only in respect of the counsel referred to in such clause (i) or (iii).
The Company shall not be liable for any settlement, compromise or
consent to the entry of any order adjudicating or otherwise disposing
of any loss, claim, damage or liability effected without its consent.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action.
17
(d) CONTRIBUTION. If for any reason the indemnification
provisions contemplated by Section 7(a) or Section 7(b) are unavailable
or insufficient to hold harmless an indemnified party 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 that resulted in such losses, claims,
damages or liability, 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 contributions pursuant to this Section 7(d) were
determined by pro rata allocation (even if the Holders or any agents or
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
7(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.
Notwithstanding the provisions of this Section 7(d), no Holder shall be
required to contribute any amount in excess of the amount by which the
dollar amount of the proceeds received by such Holder from the sale of
any Registrable Securities (after deducting any fees, discounts and
commissions applicable thereto) exceeds the amount of any damages which
such Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission, and no
underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders'
and any underwriters' obligations in this Section 7(d) to contribute
shall be several in proportion to the principal amount of Registrable
Securities registered or underwritten, as the case may be, by them and
not joint.
8. RULE 144.
The Company covenants to the Holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the Company
shall use commercially reasonable efforts to timely file the reports required to
be filed by it under the Exchange Act or the Securities Act (including the
reports under Section 13 and 15(d) of the Exchange Act referred to in
subparagraph (c)(1) of Rule 144 adopted by the Commission under the Securities
Act) and the
18
rules and regulations adopted by the Commission thereunder, all to the extent
required from time to time to enable a Holder to sell Registrable Securities
without registration under the Securities Act within the limitations of the
exemption provided by Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar or successor rule or regulation
hereafter adopted by the Commission. Upon the request of any Holder of
Registrable Securities in connection with that Holder's sale pursuant to Rule
144, the Company shall deliver to such Holder a written statement as to whether
it has complied with such requirements.
9. MISCELLANEOUS.
(a) NOTICES. All notices, requests, claims, demands, waivers
and other communications hereunder shall be in writing and shall be
deemed to have been duly given when delivered by hand, if delivered
personally or by courier, or three days after being deposited in the
mail (registered or certified mail, postage prepaid, return receipt
requested) as follows: If to the Company, to it at 0 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxx X. Xxxx, Esq., Senior Vice
President, Law and Secretary; if to the Initial Purchaser, to it at the
address for the Initial Purchaser set forth in the Purchase AGREEMENT;
and if to a Holder, to the address of such Holder set forth in the
security register, a Notice and Questionnaire or other records of the
Company or to such other address as the Company or any such Holder may
have furnished to the other in writing in accordance herewith, except
that notices of change of address shall be effective only upon receipt.
(b) PARTIES IN INTEREST. 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. 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, be deemed a party hereto for all purposes and such
Registrable Securities shall be held subject to all of the terms of
this Agreement, and by taking and holding such Registrable Securities
such transferee shall be entitled to receive the benefits of, and be
conclusively deemed to have agreed to be bound by and to perform, all
of the applicable terms and provisions of this Agreement.
(c) SURVIVAL. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results
thereof) made by or on behalf of any Holder of Registrable Securities,
any director, officer or partner of such Holder, any agent or
underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery
of and payment for the Registrable Securities pursuant to the Purchase
Agreement and the transfer and registration of Registrable Securities
by such Holder.
(d) LAW GOVERNING. THIS REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK.
19
(e) HEADINGS. The descriptive headings of the several Sections
and paragraphs of this Agreement ARE inserted for convenience only, do
not constitute a part of this Agreement and shall not affect in any way
the meaning or interpretation of this Agreement.
(f) NO INCONSISTENT AGREEMENTS. The Company has not entered
into nor will the Company on or after the date of this Agreement enter
into any agreement that is inconsistent with the rights granted to the
Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's other issued and
outstanding securities under any such agreements.
(g) ENTIRE AGREEMENT; AMENDMENTS. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the
Company has obtained the written consent of Holders of at least a
majority in aggregate principal amount of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver
or departure. Notwithstanding the foregoing sentence, (i) this
Agreement may be amended, without the consent of any Holder of
Registrable Securities, by written agreement signed by the Company and
the Initial Purchaser, to cure any ambiguity, correct or supplement any
provision of this Agreement that may be inconsistent with any other
provision of this Agreement or to make any other provisions with
respect to matters or questions arising under this Agreement that shall
not be inconsistent with other provisions of this Agreement, (ii) this
Agreement may be amended, modified or supplemented, and waivers and
consents to departures from the provisions hereof may be given, by
written agreement signed by the Company and the Initial Purchaser to
the extent that any such amendment, modification, supplement, waiver or
consent is, in their reasonable judgment, necessary or appropriate to
comply with applicable law (including any interpretation of the staff
of the SEC) or any change therein and (iii) to the extent any provision
of this Agreement relates to the Initial Purchaser, such provision may
be amended, modified or supplemented, and waivers or consents to
departures from such provisions may be given, by written agreement
signed by the Initial Purchaser. and the Company.
(h) COUNTERPARTS. This Agreement may be executed by the
parties in counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together
constitute one and the same instrument.
(i) THIRD PARTY BENEFICIARY. Each of the Holders shall be a
third party beneficiary of the agreements made hereunder between the
Company on the one hand, and the Initial Purchasers, on the other hand,
and shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its
rights or the rights of Holders hereunder.
(j) SECURITIES HELD BY THE COMPANY OR ITS AFFILIATES. Whenever
the consent or approval of Holders of a specified percentage of
Registrable Securities is required
20
hereunder, Registrable Securities held by the Company or its affiliates
(as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
(k) JURISDICTION, VENUE AND SERVICE OF PROCESS. Each of the
parties hereto hereby submits to the jurisdiction of any Federal or
State court in the City, County and State of New York, or to the courts
of its own corporate domicile, in respect of actions brought against it
as a defendant, in any legal suit, action or proceeding based on or
arising under this Agreement and agrees that all claims in respect of
such suit or proceeding may be determined in any such court. The
Company waives, to the extent permitted by law, the defense of an
inconvenient forum or objections to personal jurisdiction with respect
to the maintenance of such legal suit, action or proceeding.
21
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
CENDANT CORPORATION
By: /s/ Xxxx X. Xxxx
-------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President, Law
and Secretary
X.X. XXXXXX SECURITIES INC.
By: /s/ J. Xxxxxxxx Xxxxxxxxx
-----------------------------
Name: J. Xxxxxxxx Xxxxxxxxx
Title: Head of Equity-Linked Origination
North America
22
ANNEX A
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial holder of 3?% Convertible Senior Debentures due
2011 (the "debentures") of Cendant Corporation (the "Company") or shares of CD
common stock, par value $0.01 per share (the "common stock" and together with
the debentures, the "Registrable Securities") of the Company understands that
the Company has filed or intends to file with the Securities and Exchange
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, dated as of
November 27, 2001 (the "Registration Rights Agreement"), between the Company and
the Initial Purchaser named therein. A copy of 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 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,
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. The Company has agreed to
pay liquidated damages pursuant to the Registration Rights Agreement under
certain circumstances as set forth therein.
Certain legal consequences arise from being named as a selling
securityholder 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 this
Notice and Questionnaire, understands and agrees 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:
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(b) Full legal name of registered Holder (if not the same as (a) above)
through which Registrable Securities listed in (3) below are held:
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(c) Full legal name of The Depository Trust Company participant (if
applicable and if not the same as (b) above) through which Registrable
Securities listed in (3) below are held:
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2. Address for notices to Selling Securityholder:
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Telephone (including area code):
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Fax (including area code):
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Contact Person:
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3. Beneficial ownership of Registrable Securities:
(a) Type and Principal Amount of Registrable Securities beneficially owned:
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(b) CUSIP No(s). of such Registrable Securities beneficially owned:
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4. Beneficial ownership of the 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 Company securities beneficially owned by the
Selling Securityholder:
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(b) CUSIP No(s). of such other Company securities beneficially owned:
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5. Relationship with the Company:
EXCEPT AS SET FORTH BELOW, NEITHER THE UNDERSIGNED 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 (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
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UNDERWRITERS, IN ACCORDANCE WITH THE REGISTRATION RIGHTS AGREEMENT,
BROKER-DEALERS OR AGENTS. IF THE REGISTRABLE SECURITIES ARE SOLD THROUGH
UNDERWRITERS OR BROKER-DEALERS, 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 NEGOTIATED PRICES. SUCH SALES MAY BE
EFFECTED IN TRANSACTIONS (WHICH MAY INVOLVE 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 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.
State any exceptions here:
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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 Exchange Act and the rules thereunder relating to
stock manipulation, particularly Regulation M thereunder (or any successor rules
or regulations), 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 as
set forth therein.
Pursuant to the Registration Rights Agreement, the Company has agreed under
certain circumstances to indemnify the Selling Securityholders against certain
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.
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 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 duly authorized agent.
Dated:
Beneficial Owner:
By:
-------------------------------
Name:
Title:
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PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO:
Cendant Corporation
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
A-4
ANNEX B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Attention: Trust Officer
Re: Cendant Corporation. (the "COMPANY")
3 |_|% Convertible Senior Debentures due 2011
Dear Sirs:
Please be advised that __________________ has transferred
$___________ aggregate principal amount of the above-referenced Debentures
pursuant to an effective Registration Statement on Form S-3 (File No. 333-____)
filed by the Company.
We hereby certify that the above-named beneficial owner of the
Debentures is named as a "SELLING HOLDER" in the Prospectus dated, _________,
200_ or in supplements thereto, and that the aggregate principal amount of the
Debentures transferred are the Debentures listed in such Prospectus opposite
such owner's name.
Dated:
Very truly yours,
-----------------------------------
(Name)
By:
-------------------------------
(Authorized Signature)
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