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EXHIBIT 4.13
REGISTRATION RIGHTS AGREEMENT
Dated as of January 31, 2001
By and Between
XXXXXX INDUSTRIES, INC.,
as Issuer,
and
XXXXXX XXXXXXX & CO. INCORPORATED
as Initial Purchaser
Zero Coupon Convertible Senior Debentures Due 2021
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TABLE OF CONTENTS
Page
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1 Definitions ........................................................... 1
2 Shelf Registration .................................................... 4
3 Liquidated Damages .................................................... 5
4 Registration Procedures ............................................... 6
5 Registration Expenses ................................................ 11
6 Indemnification ...................................................... 11
7 Rules 144 and 144A ................................................... 14
8 Underwritten Registrations ........................................... 15
9 Miscellaneous ........................................................ 15
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REGISTRATION RIGHTS AGREEMENT
PREAMBLE
This Registration Rights Agreement (the "Agreement") is made as of
January 31, 2001 by and between XXXXXX INDUSTRIES, INC., a Delaware corporation
(the "Company") and XXXXXX XXXXXXX & CO. INCORPORATED (the "Initial Purchaser").
RECITALS
This Agreement is entered into in connection with the Purchase
Agreement, dated January 31, 2001 (the "Purchase Agreement"), by and between the
Company and the Initial Purchaser, which provides for the sale by the Company to
the Initial Purchaser of $1,151,000,000 aggregate principal amount at maturity
of the Company's Zero Coupon Convertible Senior Debentures due 2021 (the "Firm
Debentures"), which are convertible into common stock of the Company, par value
$0.10 per share (the "Underlying Shares"), plus up to an additional $230,200,000
aggregate principal amount at maturity of debentures which the Initial Purchaser
may subsequently elect to purchase pursuant to the terms of the Purchase
Agreement (the "Additional Debentures" and together with the Firm Debentures,
the "Convertible Debentures"). The Convertible Debentures are being issued
pursuant to an indenture dated as of the date hereof (the "Indenture"), to be
entered into between the Company and Bank One, N.A., as trustee (the "Trustee")
on February 5, 2001.
In order to induce the Initial Purchaser to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights set forth
in this Agreement for the benefit of the Initial Purchaser and any subsequent
holder or holders of the Convertible Debentures or Underlying Shares as provided
herein. The execution and delivery of this Agreement is a condition to the
Initial Purchaser's obligation to purchase the Firm Debentures under the
Purchase Agreement.
AGREEMENT
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the following
meanings:
Additional Debentures: Has the meaning given such term in the Recitals.
Agreement: Has the meaning given such term in the Preamble.
Amount of Registrable Securities: (a) With respect to Convertible
Debentures constituting Registrable Securities, the aggregate principal amount
at maturity of all such Convertible Debentures outstanding, (b) with respect to
Underlying Shares constituting
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Registrable Securities, the aggregate number of such Underlying Shares
outstanding multiplied by the Conversion Rate (as defined in the Indenture) in
effect at the time of computing the Amount of Registrable Securities and (c)
with respect to combinations thereof, the sum of (a) and (b) for the relevant
Registrable Securities.
Board: The Board of Directors of the Company.
Business Day: Any day that is not a Saturday, Sunday or a day on which
banking institutions in New York or Texas are authorized or
required by law to be closed.
Closing Date: February 5, 2001.
Company: Has the meaning given such term in the Preamble.
Convertible Debentures: Has the meaning given such term in the
Recitals.
Damages Payment Date: See Section 3(c) hereof.
Depositary: The Depository Trust Company until a successor is appointed
by the Company.
Effectiveness Date: The 180th day after the Closing Date.
Effectiveness Period: See Section 2(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder and any successor act,
rules and regulations.
Filing Date: The 90th day after the Closing Date.
Holder: Any holder or owner of a beneficial interest in Registrable
Securities.
Indemnified Holder: See Section 6 hereof.
Indemnified Person: See Section 6 hereof.
Indemnifying Person: See Section 6 hereof.
Indenture: Has the meaning given such term in the Recitals.
Initial Purchaser: Has the meaning given such term in the Preamble.
Initial Shelf Registration: See Section 2(a) hereof.
Inspectors: See Section 4(n) hereof.
Liquidated Damages: See Section 3(a) hereof.
NASD: The National Association of Securities Dealers, Inc.
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Person: An individual, partnership, corporation, limited liability
company, unincorporated association, trust or joint venture, or a governmental
agency or political subdivision thereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: Has the meaning given such term in the Recitals.
QIU: See Section 4(o) hereof.
Registrable Securities: All Convertible Debentures and all Underlying
Shares upon original issuance thereof and at all times subsequent thereto until
the earliest to occur of (i) a Registration Statement covering such Convertible
Debentures and Underlying Shares having been declared effective by the SEC and
such Convertible Debentures and Underlying Shares having been disposed of in
accordance with such effective Registration Statement, (ii) such Convertible
Debentures and Underlying Shares having been sold in compliance with Rule 144 or
(except with respect to affiliates of the Company within the meaning of the
Securities Act) are eligible for sale in compliance with Rule 144(k), or (iii)
such Convertible Debentures and any Underlying Shares ceasing to be outstanding.
Registration Default: See Section 3(a) hereof.
Registration Statement: Any registration statement of the Company that
covers the Registrable Securities filed with the SEC pursuant to the provisions
of this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder and any successor act, rules
and regulations.
Shelf Registration: See Section 2(b) hereof.
Shelf Registration Statement: See Section 2(b) hereof.
Subsequent Shelf Registration: See Section 2(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended, and the rules and
regulations of the SEC promulgated thereunder and any successor act, rules and
regulations.
Trustee: Has the meaning given such term in the Recitals.
Underlying Shares: Has the meaning given such term in the Recitals.
Underwritten registration or underwritten offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
2. Shelf Registration
(a) Shelf Registration. To the extent not prohibited by any applicable
law or applicable interpretation of the staff of the SEC, the Company shall use
its reasonable best efforts to file with the SEC a Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415 covering all of
the Registrable Securities (the "Initial Shelf Registration") on or prior to the
Filing Date. The Initial Shelf Registration shall be on Form S-3 or another
appropriate form permitting registration of such Registrable Securities for
resale by Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Company shall not
permit any securities other than the Registrable Securities to be included in
the Initial Shelf Registration or any Subsequent Shelf Registration (as defined
below).
To the extent not prohibited by any applicable law or applicable
interpretation of the staff of the SEC, the Company shall use its reasonable
best efforts to cause the Initial Shelf Registration to be declared effective
under the Securities Act on or prior to the Effectiveness Date and to keep such
Initial Shelf Registration continuously effective under the Securities Act until
the date that is two years from the Closing Date (as it may be shortened
pursuant to clause (i) or clause (ii) immediately following, the "Effectiveness
Period"), or such shorter period ending when (i) all Registrable Securities
covered by the Initial Shelf Registration have been sold in the manner set forth
and as contemplated in the Initial Shelf Registration, (ii) the date on which
all the Registrable Securities (x) held by Persons who are not affiliates of the
Company may be resold pursuant to Rule 144(k) or (y) cease to be outstanding, or
(iii) a Subsequent Shelf Registration covering all of the Registrable Securities
has been declared effective under the Securities Act.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration
or any Subsequent Shelf Registration ceases to be effective for any reason at
any time during the Effectiveness Period (other than because of the sale of all
of the securities registered thereunder),
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the Company shall use its reasonable best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any event
shall within 45 days of such cessation of effectiveness amend the Initial Shelf
Registration in a manner to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional "shelf" Registration Statement
pursuant to Rule 415 covering all of the Registrable Securities (a "Subsequent
Shelf Registration"). If a Subsequent Shelf Registration is filed, the Company
shall use its reasonable best efforts to cause the Subsequent Shelf Registration
to be declared effective under the Securities Act as soon as practicable after
such filing and to keep such Registration Statement continuously effective for a
period equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Initial Shelf Registration or any
Subsequent Shelf Registration was previously continuously effective. As used
herein the term "Shelf Registration" means the Initial Shelf Registration and
any Subsequent Shelf Registration and the term "Shelf Registration Statement"
means any Registration Statement filed in connection with a Shelf Registration.
(c) Supplements and Amendments. The Company shall use its reasonable
best efforts to promptly supplement and amend the Shelf Registration if required
by the rules, regulations or instructions applicable to the registration form
used for such Shelf Registration, if required by the Securities Act, or if
reasonably requested by the Holders of the majority in Amount of Registrable
Securities covered by such Registration Statement or by any underwriter of such
Registrable Securities.
3. Liquidated Damages
(a) The Company and the Initial Purchaser agree that the Holders will
suffer damages if the Company fails to fulfill its obligations under Section 2
hereof and that it would not be feasible to ascertain the extent of such damages
with precision. Accordingly, the Company agrees to pay liquidated damages on the
Registrable Securities at a rate of 0.25% per annum on the Amount of Registrable
Securities ("Liquidated Damages") under the circumstances (each of which shall
be given independent effect; each a "Registration Default"):
(i) if the Initial Shelf Registration is not filed on or prior to
the Filing Date, then commencing on the day after the Filing Date,
Liquidated Damages shall accrue on the Registrable Securities;
(ii) if the Company fails to use all reasonable efforts to cause
the Initial Shelf Registration to be declared effective by the SEC on
or prior to the Effectiveness Date, then commencing one day after the
Effectiveness Date, Liquidated Damages shall accrue on the Registrable
Securities; and
(iii) if a Shelf Registration has been declared effective and
such Shelf Registration ceases to be effective at any time during the
Effectiveness Period (other than as permitted under Section 3(b)),
then commencing one day after the date the Shelf Registration ceases
to be effective, Liquidated Damages shall accrue on the Registrable
Securities;
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provided, however, that Liquidated Damages on the Registrable
Securities may not accrue under more than one of the foregoing clauses (i), (ii)
or (iii) or ever exceed 0.25% per annum; provided, further, however, that (1)
upon the filing of the Shelf Registration as required hereunder (in the case of
clause (a)(i) of this Section 3), (2) upon the effectiveness of the Shelf
Registration as required hereunder (in the case of clause (a)(ii) of this
Section 3), or (3) upon the effectiveness of a Shelf Registration which had
ceased to remain effective (in the case of (a)(iii) of this Section 3),
Liquidated Damages on the Registrable Securities as a result of such clause (or
the relevant subclause thereof), as the case may be, shall cease to accrue. It
is understood and agreed that, notwithstanding any provision to the contrary, so
long as any Registrable Security is then capable of being sold under an
effective Shelf Registration Statement or pursuant to Rule 144(k), no Liquidated
Damages shall accrue on such Registrable Security.
(b) Notwithstanding paragraph (a) of this Section 3, if the Board
determines in good faith that it is in the best interest of the Company not to
disclose the existence of or facts surrounding any proposed or pending material
corporate transaction involving the Company or its subsidiaries and the Company
notifies the selling Holders within two Business Days after such determination
is made, the Company may suspend the effectiveness of a Shelf Registration as a
result of such nondisclosure for up to 30 consecutive days in any 90-day period
for a total of not more than 60 days in any calendar year, without paying
Liquidated Damages.
(c) Any amounts of Liquidated Damages due pursuant to Section 3(a)(i),
3(a)(ii) or 3(a)(iii) will be payable in cash semi-annually on each February 5
and August 5 (each a "Damages Payment Date"), commencing with the first such
date occurring after any such Liquidated Damages commences to accrue, to Holders
of record on the January 15 or July 15 next preceding such Damages Payment Date
with respect to Convertible Debentures that are Registrable Securities and to
Persons that are Holders of record on the January 15 or July 15 next preceding
such Damages Payment Date with respect to Underlying Shares that are Registrable
Securities. The amount of Liquidated Damages for Registrable Securities will be
determined on the basis of a 360-day year comprised of twelve 30-day months.
4. Registration Procedures
In connection with the filing of any Registration Statement pursuant to
Section 2 hereof, the Company shall effect such registrations to permit the sale
of the securities covered thereby in accordance with the intended method or
methods of disposition thereof, and pursuant thereto and in connection with any
Registration Statement filed by the Company hereunder the Company shall:
(a) Prepare and file with the SEC on or prior to the Filing Date,
a Registration Statement or Registration Statements as prescribed by
Section 2 hereof, and use its reasonable best efforts to cause each
such Registration Statement to become effective and remain effective
as provided herein; provided, however, that before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Company shall furnish to and afford the managing
underwriters, if any, a reasonable opportunity to review copies of all
such documents proposed to be filed (in each case, where possible, at
least five Business Days prior to such filing, or such later date as
is reasonable under the circumstances). The Company shall not file any
Registration
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Statement or Prospectus or any amendments or supplements thereto if the Holders
of a majority in Amount of Registrable Securities covered by such Registration
Statement or the managing underwriters, if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness Period;
cause the related Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant to Rule
424 (or any similar provisions then in force) promulgated under the Securities
Act; and comply with the provisions of the Securities Act and the Exchange Act
applicable to it with respect to the disposition of all securities covered by
such Registration Statement as so amended or in such Prospectus as so
supplemented except as provided in Section 3(b).
(c) Notify the selling Holders and the managing underwriters, if any,
promptly (but in any event within two Business Days), (i) when a Prospectus or
any prospectus supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective under the Securities Act (including in such notice a
written statement that any Holder may, upon request, obtain, at the sole expense
of the Company, one conformed copy of such Registration Statement or
post-effective amendment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits), (ii) of
the issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that purpose,
(iii) of the happening of any event, the existence of any condition or any
information becoming known that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires the making of any changes in or amendments or supplements to such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will 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 that in the case of
the Prospectus, it will 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 and (iv) of the Company's determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) Use its reasonable best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus and, if any such order is
issued, to use its reasonable best efforts to obtain the withdrawal of any such
order at the earliest possible moment.
(e) If requested by the managing underwriter or underwriters, if any,
or the Holders of the majority in Amount of Registrable Securities being sold in
connection with an underwritten offering (i) promptly incorporate in a
prospectus supplement or
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post-effective amendment such information as the managing underwriter or
underwriters, if any, or such Holders reasonably determine is necessary to be
included therein, (ii) make all required filings of such prospectus supplement
or such post-effective amendment as soon as reasonably practicable after the
Company has received notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment and (iii) supplement or make
amendments to such Registration Statement.
(f) Furnish to each selling Holder, a single counsel to such Holders
(chosen in accordance with Section 5(b)) and each managing underwriter, if any,
at the sole expense of the Company, one conformed copy of the Registration
Statement or Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) Deliver to each selling Holder, a single counsel to such Holders
(chosen in accordance with Section 5(b)) and the underwriters, if any, at the
sole expense of the Company, as many copies of the Prospectus (including each
form of preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the second paragraph of Section 4(s) hereof, the
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders and the underwriters or
agents, if any, and dealers, if any, in connection with the offering and sale of
the Registrable Securities covered by such Prospectus and any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Securities, to use its
reasonable best efforts to register or qualify, to the extent required by
applicable law, and to cooperate with the selling Holders and the managing
underwriter or underwriters, if any, in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities or offer and sale under the securities or Blue Sky laws
of such jurisdictions within the United States as any selling Holder, or the
managing underwriter or underwriters, if any, reasonably request; provided,
however, that where Registrable Securities are offered other than through an
underwritten offering, the Company agrees to cause the Company's counsel to
perform Blue Sky investigations and file registrations and qualifications
required to be filed pursuant to this Section 4(h); keep each such registration
or qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all other
acts or things reasonably necessary or advisable to enable the disposition in
such jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided further, however, that the Company shall not be
required to (A) qualify generally to do business in any jurisdiction where it is
not then so qualified, (B) take any action that would subject it to general
service of process in any such jurisdiction where it is not then so subject or
(C) subject itself to taxation in excess of a nominal dollar amount in any such
jurisdiction where it is not then so subject.
(i) Cooperate with the selling Holders and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates
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representing Registrable Securities to be sold, which certificates shall not
bear any restrictive legends and shall be in a form eligible for deposit with
the Depository; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriter or
underwriters, if any, or selling Holders may reasonably request.
(j) Use its reasonable best efforts to cause the Registrable Securities
covered by any Shelf Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be reasonably necessary
to enable the selling Holder or selling Holders thereof or the underwriter or
underwriters, if any, to consummate the disposition of such Registrable
Securities, except as may be required solely as a consequence of the nature of
such selling Holder's business, in which case the Company will cooperate in all
reasonable respects with the filing of such Registration Statement and the
granting of such approvals.
(k) Upon the occurrence of any event contemplated by Section 4(c)(ii),
4(c)(iii) or 4(c)(iv) hereof, as promptly as practicable prepare and (subject to
Section 4(a) hereof) use its reasonable best efforts to file with the SEC, at
the sole expense of the Company, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder, any such Prospectus 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, in
the light of the circumstances under which they were made, not misleading.
(l) Prior to the effective date of the Initial Registration Statement
relating to the Registrable Securities, (i) provide the Trustee with
certificates for the Registrable Securities in a form eligible for deposit with
the Depository and (ii) provide a CUSIP number for the Registrable Securities.
(m) Provide (i) the Holders of the Registrable Securities to be
included in such Registration Statement and not more than one counsel for all
the Holders of such Registrable Securities chosen in accordance with Section
5(b), (ii) 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, (iii) the sales or placement agent, if
any, thereof, and (iv) one counsel for such underwriters or agents, reasonable
opportunity to participate in the preparation of such Registration Statement,
each prospectus included therein or filed with the SEC, and each amendment or
supplement thereto.
(n) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Securities are
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sold to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
after the effective date of a Registration Statement, which statements
shall cover said 12-month periods.
(o) Cooperate with each seller of Registrable Securities covered
by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be
made with the NASD, including, if the Conduct Rules of the NASD or any
successor thereto as amended from time to time so require, engaging a
"qualified independent underwriter" ("QIU") as contemplated therein and
otherwise applying the provisions of this Agreement to such QIU as
though it were a participating underwriter.
(p) Cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement relating to
the Registrable Securities; and in connection therewith, cooperate with
the Trustee and the Holders to effect such changes to the Indenture as
may be required for the Indenture to be so qualified in accordance with
the terms of the TIA; and execute, and use its reasonable best efforts
to cause the Trustee to execute, all documents as may be required to
effect such changes and all other forms and documents required to be
filed with the SEC to enable the Indenture to be so qualified in a
timely manner.
(s) Use its reasonable best efforts to take all other steps
necessary or advisable to effect the registration of the Registrable
Securities covered by a Registration Statement contemplated hereby.
The Company may require each Holder as to which any registration is
being effected to furnish to the Company such information regarding such Holder
and the distribution of such Registrable Securities as the Company may, from
time to time, reasonably request to the extent necessary or advisable to comply
with the Securities Act. The Company may exclude from such registration the
Registrable Securities of any Holder if such Holder fails to furnish such
information within 20 Business Days after receiving such request. Each Holder as
to which any Shelf Registration is being effected agrees to furnish promptly to
the Company all information required to be disclosed so that the information
previously furnished to the Company by such Holder is not materially misleading
and does not omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made.
Each Holder agrees by acquisition of its Registrable Securities that,
upon actual receipt of any notice from the Company of the happening of any event
of the kind described in Section 4(c)(ii), 4(c)(iii) or 4(c)(iv) hereof, such
Holder will forthwith discontinue disposition of such Registrable Securities
covered by such Registration Statement or Prospectus until such Holder's receipt
of the copies of the supplemented or amended Prospectus contemplated by Section
4(k) hereof, or until it is advised in writing by the Company that the use of
the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto.
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Notwithstanding anything to the contrary contained herein, the Company
shall have no liability for any incremental expenses incurred as a result of an
underwritten offering of any Registrable Securities.
5. Registration Expenses
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Company shall be borne by the Company, including,
without limitation, (i) all registration and filing fees (including, without
limitation, fees and expenses of compliance with state securities or Blue Sky
laws, including, without limitation, reasonable fees and disbursements of
counsel in connection with Blue Sky qualifications of the Registrable Securities
and determination of the eligibility of the Registrable Securities for
investment under the laws of such jurisdictions as provided in Section 4(h)
hereof), (ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with the Depository and of printing prospectuses if the printing of prospectuses
is requested by the Holders of the majority in Amount of Registrable Securities
included in any Registration Statement, (iii) messenger, telephone and delivery
expenses of the Company, (iv) fees and disbursements of counsel for the Company
and reasonable fees and disbursements of one special counsel for the sellers of
Registrable Securities (subject to the provisions of Section 5(b) hereof), (v)
fees and disbursements of its independent certified public accountants
(including, without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance), (vi) Securities
Act liability insurance, if the Company desires such insurance, (vii) fees and
expenses of all other Persons retained by the Company, (viii) internal expenses
of the Company (including, without limitation, all salaries and expenses of
officers and employees of the Company performing legal or accounting duties),
(ix) the expense of any annual audit, (x) the fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange, if applicable, and (xi) the expenses relating to printing, word
processing and distributing all Registration Statements, underwriting
agreements, securities sales agreements and any other documents necessary in
order to comply with this Agreement. Notwithstanding anything in this Agreement
to the contrary, each Holder shall pay all underwriting discounts and brokerage
commissions with respect to any Registrable Securities sold by it.
(b) The Company shall reimburse the Holders of the Registrable
Securities being registered in a Shelf Registration for the reasonable fees and
disbursements of not more than one counsel chosen by the Holders of a majority
in Amount of Registrable Securities to be included in such Registration
Statement.
6. Indemnification
(a) The Company agrees to indemnify and hold harmless (i) the Initial
Purchaser, (ii) each Holder, (iii) each Person, if any, who controls (within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act) any of the foregoing (any of the Persons referred to in this clause (iii)
being hereinafter referred to as a "controlling person"), and (iv) the
respective officers, directors, partners, employees, representatives and agents
of the Initial Purchaser, the Holders (including predecessor Holders) or any
controlling person (any person referred to in clause (i), (ii), (iii) or (iv)
may hereinafter be referred to as an "Indemnified
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Holder"), from and against any and all losses, claims, damages, liabilities and
judgments (including, without limitation, reasonable legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus, or any
amendment or supplement thereto or any related preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any Indemnified
Holder furnished to the Company in writing by such Indemnified Holder expressly
for use in therein; provided, however, that the Company shall not be liable to
any Indemnified Holder under the indemnity agreement of this paragraph with
respect to any preliminary prospectus to the extent that any such loss, claim,
damage, liability, judgment or expense of such Indemnified Holder results from
the fact that such Indemnified Holder sold Registrable Securities under a
Registration Statement to a Person as to whom it shall be established that there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus (or of the preliminary prospectus as then amended or
supplemented if the Company shall have furnished such Indemnified Holder with
such amendment or supplement thereto on a timely basis), in any case where such
delivery is required by applicable law and the loss, claim, damage, liability or
expense of such Indemnified Holder results from an untrue statement or omission
of a material fact contained in the preliminary prospectus which was corrected
in the Prospectus (or in the preliminary prospectus as then amended or
supplemented if the Company shall have furnished such Indemnified Holder with
such amendment or supplement thereto, as the case may be, on a timely basis).
The Company shall notify such Indemnified Holder promptly of the institution,
threat or assertion of any claim, proceeding (including any governmental
investigation) or litigation in connection with the matters addressed by this
Agreement which involves the Company or such Indemnified Holder.
Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, officers and each Person who controls the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the
Company to each Holder, but only with reference to such losses, claims, damages
or liabilities which are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to a Holder furnished to the Company in writing by such
Holder expressly for use in any Registration Statement or Prospectus, or any
amendment or supplement thereto or any related preliminary prospectus.
The Initial Purchaser agrees to indemnify and hold harmless the
Company, its directors, officers and each Person who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
the Initial Purchaser, but only with reference to such losses, claims, damages
or liabilities which are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to the Initial Purchaser furnished to the Company in
writing by the Initial Purchaser expressly for use in any Registration Statement
or Prospectus, or any amendment or supplement thereto or any related preliminary
prospectus.
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If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person or Persons against whom such indemnity may be sought (each an
"Indemnifying Person") in writing, and such Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 6 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, the Indemnifying Person
shall be able to participate in such proceeding and, to the extent that it so
elects, jointly with any other similarly situated Indemnifying Person, to assume
the defense thereof, subject to the right of the Indemnified Person to be
separately represented and to direct its own defense if the named parties to any
such proceeding include both the Indemnified Person and the Indemnifying Person
and the Indemnified Person has been advised by counsel that representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) such Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary or (ii) the named parties in any such proceeding
(including any impleaded parties) include an Indemnifying Person and an
Indemnified Person and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that an Indemnifying Person shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Indemnified
Holders shall be designated in writing by the Holders of the majority in Amount
of Registrable Securities, and any such separate firm for the Company, its
directors, respective officers and such control Persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, such Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. No Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 6 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Indemnifying Person on the one hand and the Indemnified
Person on the other hand pursuant to the Purchase Agreement or from the offering
of the Registrable Securities pursuant to any Shelf Registration
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or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Indemnifying Person on the one hand and the Indemnified Person on the other
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and any Indemnified Holder on the other shall be deemed to be in the same
proportion as the total net proceeds from the initial offering and sale of
Convertible Debentures (before deducting expenses) received by the Company bear
to the total net proceeds received by such Indemnified Holder from sales of
Registrable Securities giving rise to such obligations. The relative fault of
the parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or such Indemnified Holder and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
Each of the Company and the Initial Purchaser agrees that it would not
be just and equitable if contribution pursuant to this Section 6 were determined
by pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, in no event shall any Holder
be required to contribute any amount in excess of the amount by which the net
proceeds received by such Holder from the sale of the Registrable Securities
pursuant to a Shelf Registration Statement exceeds the amount of damages which
such Holder would have 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 remedies provided for in this Section 6 are not exclusive and shall
not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 6
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Holder or any Person controlling any Holder or by or on behalf of the
Company, its officers or directors or any other Person controlling any of the
Company and (iii) acceptance of and payment for any of the Registrable
Securities.
7. Rules 144 and 144A
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
for so long as any Registrable Securities remain outstanding, if at any time the
Company is not required to file such reports, it will, upon the
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request of any Holder, make available such information necessary to permit sales
pursuant to Rule 144A. The Company further covenants that, for so long as any
Registrable Securities remain outstanding, it will use its reasonable best
efforts to take such further action as any Holder may reasonably request in
writing, all to the extent required from time to time to enable such holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (a) Rule 144(k) and Rule 144A, or
(b) any similar rule or regulation hereafter adopted by the SEC. Notwithstanding
the foregoing, nothing in this Section 7 shall be deemed to require the Company
to register any of its securities pursuant to the Exchange Act.
8. Underwritten Registrations
If any of the Registrable Securities covered by any Shelf Registration
are to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of the majority in Amount of Registrable Securities to be
included in such offering and be reasonably acceptable to the Company.
No Holder may participate in any underwritten registration hereunder
unless such Holder (a) 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 (b) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
9. Miscellaneous
(a) No Inconsistent Agreements. The Company has not, as of the date
hereof, and the Company shall not, after the date of this Agreement, enter into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof. The Company will not enter into any agreement with
respect to any of its securities that will grant to any Person piggyback
registration rights with respect to a Registration Statement, except to the
extent any existing right has heretofore been waived; provided, however, that
notwithstanding anything herein to the contrary the rights previously granted by
the Company shall not be negatively affected by the Agreement.
(b) Adjustments Affecting Registrable Securities. The Company shall
not, directly or indirectly, take any action with respect to the Registrable
Securities as a class that would adversely affect the ability of the Holders to
include their Registrable Securities in a registration undertaken pursuant to
this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of the Company and the Holders of not less than the majority in Amount
of Registrable Securities; provided, however, that Section 6 and this Section
9(c) may not be amended, modified or supplemented without the prior written
consent of the Company and each Holder (including, in the case of an amendment,
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modification or supplement of Section 6, any Person who was a Holder of
Registrable Securities disposed of pursuant to any Registration Statement).
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable Securities may be
given by Holders of at least a majority in Amount of the Registrable Securities
being sold by such Holders pursuant to such Registration Statement.
(d) Notices. All notices and other communications (including without
limitation any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
(1) if to a Holder, at the most current address of such Holder
set forth on the records of the registrar under the Indenture, in the
case of Holders of Convertible Debentures, and the stock ledger of the
Company, in the case of Holders of common stock of the Company.
(2) if to the Initial Purchaser:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
Facsimile No.: (000) 000-0000
with copies to:
Xxxxxx & Xxxxxx L.L.P.
2300 First City Tower
0000 Xxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxx
Facsimile No.: (000) 000-0000
(3) if to the Company, at the addresses as follows:
Xxxxxx Industries, Inc.
000 Xxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Legal Department
Facsimile No.: 000-000-0000
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with copies to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxx
Facsimile No.: 212-294-4700
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a next-day air courier; and when the addressor
receives facsimile confirmation, if sent by facsimile.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
including the Holders; provided, however, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder unless and
except to the extent such successor or assign holds Registrable Securities.
(f) Counterparts. This Agreement may be executed (including by
facsimile) 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, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage in Amount of
Registrable Securities is required hereunder, Registrable Securities held by the
Company or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
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(k) Third Party Beneficiaries. Holders are intended third party
beneficiaries of this Agreement and this Agreement may be enforced by such
Persons.
(l) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Initial Purchaser on the
one hand and the Company on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
[REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxx XxXxxxxxx
------------------------------------------------
Name: Xxxxxx XxXxxxxxx
Title: Vice President - Administration & Secretary
Confirmed and accepted as of
the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
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