Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of September 16, 1997 by and among The
Interpublic Group of Companies, Inc., a Delaware corporation (the
"Company"), Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx, Sachs &
Co. and SBC Warburg Dillon Read Inc. (the "Initial Purchasers")
pursuant to the Purchase Agreement, dated as of September 10,
1997 (the "Purchase Agreement"), between the Company and the
Initial Purchasers. In order to induce the Initial Purchasers to
enter into the Purchase Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under
the Purchase Agreement.
The Company agrees with the Initial Purchasers, (i) for its
benefit as Initial Purchasers and (ii) for the benefit of the
holders from time to time of the Convertible Notes (including the
Initial Purchasers) and the holders from time to time of the
Underlying Common Stock issued upon conversion or exchange of the
Convertible Notes (each of the foregoing a "Holder" and together
the "Holders"), as follows:
SECTION 1. Definitions. Capitalized terms used herein
without definition shall have their respective meanings set forth
in the Purchase Agreement. As used in this Agreement, the
following terms shall have the following meanings:
Affiliate: "Affiliate" means, with respect to any specified
person, (i) any other person directly or indirectly controlling
or controlled by, or under direct or direct common control with,
such specified person or (ii) any officer or director of such
other person. For purposes of this definition, the term "control"
(including the terms "controlling," "controlled by" and "under
common control with") of a person means the possession, direct or
indirect, of the power (whether or not exercised) to direct or
cause the direction of the management and policies of a person,
whether through the ownership of voting securities, by contract,
or otherwise.
Business Day: 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.
Convertible Notes: The 1.80% Convertible Subordinated Notes
due 2004 of he Company being issued and sold pursuant to the
Purchase Agreement and the Indenture.
Common Stock: The shares of common stock, $0.10 par value
per share, of the Company and any other shares of common stock as
may constitute "Common Stock" for purposes of the Indenture,
including the Underlying Common Stock.
Conversion Rate: The initial Conversion Rate is 13.386
shares of Common Stock per $1,000 principal amount at maturity of
Convertible Notes, subject t adjustment upon the occurrence of
certain events pursuant to the terms of the Indenture.
Damages Accrual Period: See Section 2(e) hereof.
Damages Payment Date: Each of the semi-annual interest
payment dates provided in the Indenture.
Deferral Period: See Section 2(d)(iii) hereof.
Effectiveness Period: The period commencing with the date
hereof and ending on the date that all Registrable Securities
have ceased to be Registrable Securities.
Event: See Section 2(e) hereof.
Event Date: See Section 2(e) hereof.
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated
thereunder.
Filing Date: See Section 2(a) hereof.
Holder: See the second paragraph of this Agreement.
Indenture: The Indenture, dated as of September 16, 1997,
between the Company, and The Bank o New York as trustee, pursuant
to which the Convertible Notes are being issued, as amended or
supplemented from time to time in accordance with the terms
hereof.
Initial Purchasers: Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxx, Sachs & Co. and SBC Warburg Dillon Read Inc.
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Initial Shelf Registration: See Section 2(a) hereof.
Liquidated Damages Amount: See Section 2(e) hereof.
Losses: See Section 6 hereof.
Managing U derwriters: The investment banking firm or firms
that shall manage or co-manage an Underwritten Offering.
Notice Holder: See Section 2(d)(i) hereof.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed
as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or
supplement d by any amendment or prospectus supplement, including
post-effective amendments, and all material incorporated by
reference or deemed to be incorporated by reference in such
Prospectus.
Purchase Agreement: See the first paragraph of this
Agreement.
Record Holder: (i) With respect to any Damages Payment Date
relating to any Convertible Note as to which any such Liquidated
Damages Amount has accrued, the registered holder of such
Convertible Note on the record date wi h respect to the interest
payment date under the Indenture on which such Damages Payment
Date shall occur and (ii) with respect to any Damages Payment
Date relating to any Common Stock as to which any such Liquidated
Damages Amount has accrued, the registered holder of such Common
Stock 15 days prior to the next succeeding Damages Payment Date.
Registrable Securities: (A) The Common Stock of the Company
into which the Convertible Notes are convertible or converted,
whether or not such Co vertible Notes have been converted, and at
all times subsequent thereto, and any Common Stock issued with
respect thereto upon any stock dividend, split or similar event
until, in the case of any such Common Stock, (i) it is
effectively registered under the Securities Act and resold in
accordance with the Registration Statement covering it, (ii) it
is saleable by the holder thereof pursuant to Rule 144(k) or
(iii) it is sold to the public pursuant to Rule 144, and, as a
result of the event or circumstance described in any of the
foregoing clauses (i) through (iii), the legends with respect to
transfer restrictions required under the Indenture (other than
any such legends required solely as the consequence of the fact
that such Common Stock (or the Convertible Notes, upon the
conversion of which, such Common Stock was issued or is issuable)
is owned by, or was previously owned
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by, the Company or an Affiliate of the Company) are removed or
removable in accordance with the terms of the Indenture; (B) the
Convertible Notes, until, in the case of any such Convertible
Note, (i) it is converted into shares of Common Stock in
accordance with the terms of the Indenture, (ii) it is
effectively registered under the Securities Act and resold in
accordance with the Registration Statement covering it, (iii) it
is saleable by the holder thereof pursuant to Rule 144(k) or (iv)
it is sold to the public pursuant to Rule 144, and, as a result
of the event or circumstance described in any of the foregoing
clauses (ii) through (iv), the legends with respect to transfer
restrictions required under the Indenture (other than any such
legends required solely as the consequence of the fact that such
Convertible Note is owned by, or was previously owned by, the
Company or an Affiliate of the Company) are removed or removable
in accordance with the terms of the Indenture.
Registration Expenses: See Section 5 hereof.
Registration Statement: Any registration statement of the
Company which covers any of the Registrable Securities 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 under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC.
Rule 144A: Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
Selling Period: See Section 2(d)(i) hereof.
Shelf Registration: See Section 2(a) hereof.
Special Counsel: Xxxxx Xxxx & Xxxxxxxx or such other
successor counsel as shall be specified by the holders of a
majority of the Registrable Securities, the
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fees and expenses of which will be paid by the Company pursuant
to Section 5 hereof.
Subsequent Shelf Registration: See Section 2(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The Bank of New York, the Trustee under the
Indenture.
Underlying Common Stock: The Common Stock of the Company
into which the Convertible Notes are convertible or into which
the Exchangeable Notes are exchangeable.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
SECTION 2. Shelf Registration. (a) The Company shall prepare
and file with the SEC, as soon as practicable but in any event
within ninety (90) days after the latest date of original
issuance of the Convertible Notes (the "Filing Date"), a
Registration Statement for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 of the Securities Act (a
"Shelf Registration") registering the resale from time to time by
Holders thereof of all of the Registrable Securities upon and
following conversion or the exchange of the Notes (the "Initial
Shelf Registration"). The Initial Shelf Registration shall be on
Form S-3 or another appropriate form permitting registration of
such Registrable Securities for resale by such Holders in the
manner or manners designated by them (including, without
limitation, one or more Underwritten Offerings). The Company
shall use its reasonable efforts to cause the Initial Shelf
Registration to become effective under the Securities Act as
promptly as is practicable and to keep the Initial Shelf
Registration continuously effective under the Securities Act
until the earlier of the expiration of the Effectiveness Period
or the date a Subsequent Shelf Registration Statement has been
declared effective under the Securities Act.
(b) If the Initial Shelf Registration or any Subsequent
Shelf Registration, as defined below, ceases to be effective for
any reason at any time during the Effectiveness Period (other
than because all Registrable Securities registered thereunder
shall have been sold or shall have ceased to be Registrable
Securities), the Company shall use its best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness
thereof, and in any event shall within thirty (30) days of such
cessation of effectiveness amend the Shelf Registration in a
manner reasonably expected to obtain the withdrawal of the order
suspending the
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effectiveness thereof, or file an additional Shelf Registration
covering all of the Registrable Securities (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the
Company shall use its best efforts to cause the Subsequent Shelf
Registration to become effective as promptly as is practicable
after such filing and to keep such Registration Statement
continuously effective until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf
Registration if required by the rules, regulations or
instructions applicable to the registration form used by the
Company for such Shelf Registration, if required by the
Securities Act, or if reasonably requested by the Initial
Purchasers or by the Trustee on behalf of the Holders of the
Registrable Securities covered by such Registration Statement or
by any Managing Underwriter of such Registrable Securities.
(d) Each Holder of Registrable Securities agrees that if
Holder wishes to sell its Registrable Securities pursuant to a
Shelf Registration and related Prospectus, it will do so only in
accordance with this Section 2(d). Each Holder of Registrable
Securities agrees to give written notice to the Company at least
three (3) Business Days prior to any intended distribution of
Registrable Securities under the Shelf Registration, which notice
shall specify the date on which such Holder intends to begin such
distribution and any information with respect to such Holder and
the intended distribution of Registrable Securities by such
Holder required to amend or supplement the Registration Statement
with respect to such intended distribution of Registrable
Securities by such Holder. As promptly as is practicable after
the date such notice is provided, and in any event within two (2)
Business Days after such date, the Company shall either:
(i) (A) prepare and file with the Commission a post-
effective amendment to the Shelf Registration or 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 such Registration Statement 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 so that, as thereafter
delivered to purchasers of the Registrable Securities being sold
thereunder, 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
light of the circumstances under which they were made, not
misleading; (B) provide the Holders of the Registrable Securities who
gave such notice copies of any documents filed pursuant to
Section 2(d)(i)(A); (C) and inform each such Holder that the Company
has complied with its obligations in Section 2(d)(i)(A) (or that,
if the Company has filed a post-effective amendment to the Shelf
Registration which
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has not yet been declared effective, the Company will notify each
such Holder to that effect, will use its best efforts to secure
the effectiveness of such post-effective amendment and will
immediately notify each such Holder pursuant to Section
2(d)(i)(A) hereof when the amendment has become effective); each
Holder who has given notice of intention to distribute such
Holder's Registrable Securities in accordance with Section 2(d)
hereof (a "Notice Holder") will sell all or any or such
Registrable Securities pursuant to the Shelf Registration and
related Prospectus only during the 45-day period commencing with
the date on which the Company gives notice, pursuant to Section
2(d)(i)(A), that the Registration Statement and Prospectus may be
used for such purpose (such 45-day period is referred to as a
"Selling Period"); the Notice Holders will not sell any
Restricted Securities pursuant to such Registration Statement or
Prospectus after such Selling Period without giving a new notice
of intention to sell pursuant to Section 2(d) hereof and
receiving a further notice from the Company pursuant to Section
2(d)(i)(A) hereof; or
(ii) in the (A) event of the happening of any event of the
kind described in Section 2(e)(i), 2(e)(ii), 2(e)(iii) or
2(iv) hereof or (B) that, in the judgment of the Company, it is
advisable to suspend use of the Prospectus for a discrete
period of time due to pending material corporate
developments or similar material events that have not yet
been publicly disclosed and as to which the Company believes
public disclosure will be prejudicial to the Company, the
Company shall deliver a certificate in writing, signed by
its Chief Executive Officer, Chief Financial Officer or
General Counsel, to the Notice Holders, the Special Counsel
and the Managing Underwriters, if any, to the effect of the
foregoing and, upon receipt of such certificate, each such
Notice Holder's Selling Period will not commence until such
Notice Holder's receipt of copies of the supplemented or
amended Prospectus provided for in Section 2(d)(i)(A)
hereof, 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
Company will use its best efforts to ensure that the use of
the Prospectus may be resumed, and the Selling Period will
commence, as promptly as is practicable and, in the case of
a pending development or event referred to in Section
2(d)(ii)(B) hereof, as soon as the earlier of (x) public
disclosure of such pending material corporate development or
similar material event or (y) in the judgment of the
Company, public disclosure of such material corporate
development or similar material event would not be
prejudicial to the Company. Notwithstanding the foregoing,
the Company shall not under any circumstances be entitled to
exercise its right under this Section 2(d)(ii) to defer the
commencement of a Selling Period more than one (1) time in
any three (3) month period or
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three (3) times in any twelve (12) month period, and the
period in which a Selling Period is suspended shall not
exceed thirty (30) days. In no event shall the Company be
permitted to extend the period during which such Selling
Period is deferred from and after the date a Notice Holder
provides notice to the Company in accordance with this
Section 2(d) of its intention to distribute Registrable
Securities (a "Deferral Period") beyond such thirty (30) day
period.
(e) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible
to ascertain the extent of such damages with precision, if (i) the
Initial Shelf Registration has not been filed on or prior to the
Filing Date,(ii) prior to the end of the Effectiveness Period, the
SEC shall have issued a stop order suspending the effectiveness
of the Shelf Registration or proceedings have been initiated with
respect to the Shelf Registration under Section 8(d) or 8(e) of
the Securities Act, (iii) the aggregate number of days in any one
Deferral Period exceeds the periods permitted pursuant to Section
2(d)(ii) hereof or (iv) the number of Deferral Periods exceeds the
number permitted pursuant to Section 2(d)(ii) hereof (each of the
events of a type described in any of the foregoing clauses (i)
through (iv) are individually referred to herein as an "Event",
and the Filing Date in the case of clause (i), the date on which
the effectiveness of the Shelf Registration has been suspended or
proceedings with respect to the Shelf Registration under Section
8(d) or 8(e) of the Securities Act have been commenced in the
case of clause (ii), the date on which the duration of a Deferral
Period exceeds the periods permitted by Section 2(d)(ii) hereof
in the case of clause (iii), and the date of the commencement of
a Deferral Period that causes the limit on the number of Deferral
Periods under Section 2(d)(ii) hereof to be exceeded in the case
of clause (iv), being referred to herein as an "Event Date").
Events shall be deemed to continue until the "Event Termination"
which shall be the following dates with respect to the respective
types of Events: the date the Initial Registration Statement is
filed in the case of an Event of the type described in clause
(i), the date that all stop orders suspending effectiveness of
the Shelf Registration have been removed and the proceedings
initiated with respect to the Shelf Registration under Section
8(d) or (e) of the Securities Act have terminated, as the case
may be, in the case of Events of the types described in clause
(ii), termination of the Deferral Period which caused the periods
permitted by Section 2(d)(ii) to be exceeded in the case of the
commencement of an Event of the type described in clause (iii),
and termination of the Deferral Period the commencement of which
caused the number of Deferral Periods permitted by Section
2(d)(ii) to be exceeded in the case of Events of the type
described in clause (iv).
Accordingly, upon the occurrence of any Event and until
such time as there are no Events which have occurred and are
continuing (a "Damages
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Accrual Period"), commencing on the Event Date on which such
Damages Accrual Period began, the ompany agrees to pay, as
liquidated damages, and not as a penalty, an additional amount
(the "Liquidated Damages Amount"): (A) (i) to each holder of a
Convertible Notes that is a Notice Holder, accruing at a rate
equal to one-half of one percent per annum (50 basis points) on
an amount equal to the sum of (x) the Issue Price (as defined in
the Indenture) of the Convertible Notes held by such Notice
Holders and (y) the accrued Original Issue Discount (as defined
in the Indenture) on such Convertible Notes and (ii) to each
holder of an Underlying Common Stock that is a Notice Holder,
accruing at a rate equal to one-half of one percent per annum (50
basis points) calculated on an amount equal to the product of (x)
the then accreted value of $1,000 principal amount at maturity of
Convertible Notes divided by the then applicable Conversion Rate,
times (y) the number of shares of Common Stock held by such
holder; and (B) if the Damages Accrual Period continues for in
excess of thirty (30) days from the Event Date, from and after
the end of such thirty (30) day period until such time as there
are no Events which have occurred and are continuing, (i) to each
holder of a Convertible Notes (whether or not a Notice Holder),
accruing at a rate equal to one-half of one percent per annum (50
basis points) on an amount equal to the sum of (x) the Issue
Price of the Convertible Notes held by such holder and (y) the
accrued Original Issue Discount on such Convertible Notes and
(ii) to each holder of Underlying Common Stock (whether or not a
Notice Holder), accruing at a rate equal to one-half of one
percent per annum (50 basis points) calculated on an amount equal
to the product of (x) the then accreted value of $1,000 principal
amount at maturity of Convertible Notes divided by the then
applicable Conversion Rate times (y) the number of shares of
Common Stock held by such holder. Notwithstanding anything else
in this Section 2(e), no Liquidated Damages Amounts shall accrue
under clause (A) for the preceding sentence during any period for
which Liquidated Damages Amounts accrue under clause (B) of the
foregoing sentence or as to any Registrable Securities from and
after the earlier of (x) the date such securities are no longer
Registrable Securities, and (y) expiration of the Effectiveness
Period. The rate of accrual of the Liquidated Damages Amount with
respect to any period shall not exceed the rate provided for in
this paragraph notwithstanding the occurrence of multiple
concurrent Events.
The Company shall pay the liquidated damages due on any
Convertible Notes or Underlying Common Stock by depositing with
the Trustee under the Indenture, in trust for the benefit of the
Notice Holders or the holders of Convertible Notes or Underlying
Common Stock, as the case may be, entitled thereto, at least one
(1) business day prior to the applicable Damages Payment Date,
sums sufficient to pay the liquidated damages accrued or accruing
from and including the last preceding Damages Payment Date to,
but not including, such Damages Payment Date. The Liquidated
Damages Amount shall be paid by the Company to the Record Holders
on each Damages Payment Date by wire transfer
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of immediately available funds to the accounts specified by them
or by mailing checks to their registered addresses as they appear
in the register, in the case of the Convertible Notes, if no such
accounts have been specified on or before the Damages Payment
Date; provided, however, that any Liquidated Damages Amount
accrued with respect to any Convertible Note or portion thereof
called for redemption on a redemption date, redeemed or
repurchased in connection with a Fundamental Change (as defined
in the Indenture) on a repurchase date, or converted into Common
Stock on a conversion date prior to the Damages Payment Date,
shall, in any such event, be paid instead to the holder who
submitted such Convertible Note or portion thereof for
redemption, repurchase or conversion on the applicable redemption
date, repurchase date or conversion date, as the case may be, on
such date (or promptly following the conversion date, in the case
of conversion of a Convertible Note). The Trustee shall be
entitled, on behalf of the holders of Convertible Notes, holders
of Common Stock and Notice Holders, to seek any available remedy
for the enforcement of this Agreement, including for the payment
of such Liquidated Damages Amount. Notwithstanding the foregoing,
the parties agree that the sole damages payable for a violation
of the terms of this Agreement with respect to which a Liquidated
Damages Amount is expressly provided shall be such Liquidated
Damages Amount. Nothing shall preclude a Notice Holder or Holder
of Registrable Securities from pursuing or obtaining specific
performance or other equitable relief with respect to this
Agreement, in addition to the payment of Liquidated Damages.
All of the Company's obligations set forth in this Section
2(e) which are outstanding with respect to any Registrable
Securities at the ime such security ceases to be a Registrable
Security shall survive until such time as all such obligations
with respect to such security have been satisfied in full
(notwithstanding termination of the Agreement pursuant to Section
9(o)).
The parties hereto agree that the liquidated damages
provided for in this Section 2(e) constitute a reasonable
estimate of the damages that may be incurred by holders of
Registrable Securities (other than the Initial Purchasers) by
reason of the failure of th Shelf Registration to be filed or
declared effective or unavailable (absolutely or as a practical
matter) for effecting resales of Registrable Securities, as the
case may be, in accordance with the provisions hereof.
SECTION 3. Registration Procedures. In connection with the
Company's registration obligations under Section 2 hereof, the
Company shall effect such egistrations to permit the sale of the
Registrable Securities in accordance with the intended method or
methods of disposition thereof, and pursuant thereto the Company
shall as expeditiously as possible:
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(a) Prepare and file with the SEC a Registration Statement
or Registration Statements on any appropriate form under the
Securities Act available for the sale of the Registrable
Securities by the Holders thereof in accordance with the intended
method or methods of distribution thereof, and use its reasonable
efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided, that
before filing any such Registration Statement or Prospectus or
any amendments or supplements thereto (other than documents that
would be incorporated or deemed to be incorporated therein by
reference and that the Company is required by applicable
securities laws or stock exchange requirements to file) the
Company shall furnish to the Initial Purchasers, the Special
Counsel and the Managing Underwriters of such offering, if any,
copies of all such documents proposed to be filed, which
documents will be subject to the review of the Initial
Purchasers, the Special Counsel and such Managing Underwriters,
and the Company shall not file any such Registration Statement or
amendment thereto or any Prospectus or any supplement thereto
(other than such documents which, upon filing, would be
incorporated or deemed to be incorporated by reference therein
and that the Company is required by applicable securities laws or
stock exchange requirements to file) to which the Holders of a
majority of the Registrable Securities covered by such
Registration Statement, the Initial Purchasers or the Special
Counsel shall reasonably object in writing within two (2) full
Business Days.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may
be necessary to keep such Registration Statement continuously
effective for the applicable period specified in Section 2; cause
the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force)
under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable
period in accordance with the intended methods of disposition by
the sellers thereof set forth in such Registration Statement as
so amended or such Prospectus as so supplemented.
(c) Notify the selling Holders, the Initial Purchasers, the
Special Counsel and the Managing Underwriters, if any, promptly,
and (if requested by any such person) confirm such notice in
writing, (i) when a Prospectus, any Prospectus supplement, a
Registration Statement or a post-effective amendment to a
Registration Statement has been filed with the SEC, and, with
respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by
the SEC or any other federal or state governmental authority for
amendments or supplements to a Registration Statement or related
Prospectus or for additional information, (iii) of the issuance
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by the SEC or any other federal or state governmental authority
of any stop order suspending the effectiveness of a Registration
Statement or the initiation or threatening of any proceedings for
that purpose, (iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale
in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (v) except during any Deferral Period,
of the existence of any fact or happening of any event which
makes any statement of a material fact in such Registration
Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue or which
would require the making of any changes in the Registration
Statement or Prospectus in order 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, (vi) 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 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 of the Company's determination that a
post-effective amendment to a Registration Statement would be
appropriate.
(d) Use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement,
or the lifting of any suspension of the qualification (or
exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest possible
moment.
(e) If reasonably requested by the Initial Purchasers, the
Special Counsel, the Managing Underwriters, if any, or the
Holders of a majority of the Registrable Securities being sold, (i)
promptly incorporate in a Prospectus supplement or post-effective
amendment to a Registration Statement such information as the
Initial Purchasers, the Special Counsel, the Managing
Underwriters, if any, or such Holders, in connection with any
offering of Registrable Securities, agree should be included
therein as required by applicable law, and (ii) make all required
filings of such Prospectus supplement or such post-effective
amendment as promptly as is practicable after the Company has
received notification of the matters to be incorporated in such
Prospectus supplement or post-effective amendment; provided, that
the Company shall not be required to take any actions under this
Section 3(e) that are not, in the reasonable opinion of counsel
for the Company, in compliance with applicable law.
(f) Furnish to each selling Holder, the Special Counsel and
the Initial Purchasers, and each Managing Underwriter, if any,
without charge, at least one conformed copy of the Registration
Statement or Statements and any amendment
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thereto, including financial statements but excluding schedules,
all documents incorporated or deemed to be incorporated therein
by reference and all exhibits (unless requested in writing by
such holder, counsel, Initial Purchasers or underwriter).
(g) Deliver to each selling Holder, the Special Counsel and
the Initial Purchasers and each Managing Underwriter, if any, in
connection with any offering of Registrable Securities, without
charge, as many copies of the Prospectus or Prospectuses relating
to such Registrable Securities (including each preliminary
prospectus) and any amendment or supplement thereto as such
persons may reasonably request; and the Company hereby consents
to the use of such Prospectus or each amendment or supplement
thereto by each of the selling Holders of Registrable Securities
and the Underwriters, if any, in connection with any offering and
sale of the Registrable Securities covered by such Prospectus or
any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities,
to register or qualify or cooperate with the selling Holders, the
Managing Underwriters, if any, and the Special Counsel in
connection with the registration or qualification (or exemption
from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky
laws of such jurisdictions within the United States as any
selling Holder or Managing Underwriter reasonably requests in
writing; 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 necessary or advisable to enable
the disposition in such jurisdictions of the Registrable
Securities covered by the applicable Registration Statement;
provided, that the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it is not then
so qualified or (ii) take any action that would subject it to general
service of process in suits or to taxation in any such
jurisdiction where it is not then so subject.
(i) Cause the Registrable Securities covered by the
applicable Registration Statement to be registered with or
approved by such other governmental agencies or authorities
within the United States, except as may be required solely as a
consequence of the nature of such selling Holder, in which case
the Company will cooperate in all reasonable respects with the
filing of such Registration Statement and the granting of such
approvals, as may be necessary to enable the selling Holder or
Holders thereof or the Managing Underwriters, if any, to
consummate the disposition of such Registrable Securities.
(j) During any Selling Peri d (other than during a Deferral
Period), immediately upon the existence of any fact or the
occurrence of any event as a
13
result of which a 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 a 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, promptly prepare and file a post-effective
amendment to each Registration Statement or a supplement to the
related Prospectus or any document incorporated therein by
reference or file any other required or permissible document
(such as a Current Report on Form 8-K) that would be incorporated
by reference into the Registration Statement so that the
Registration Statement shall 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 so that the Prospectus will not contain any
untrue statement of a material fact or omit to state any 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 Registration Statement, use its
best efforts to cause it to become effective as promptly as is
practicable.
(k) Enter into such agreements (including, in the event of
an Underwritten Offering, an underwriting agreement in form,
scope and substance as is customary in Underwritten Offerings)
and take all such other actions in connection therewith
(including, in the event of an underwritten offering, those
reasonably requested by the Managing Underwriters, if any, or the
Holders of a majority of the Registrable Securities being sold)
in order to expedite or facilitate the disposition of such
Registrable Securities and in such connection, whether or not an
underwriting agreement is entered into, and if the registration
is an underwritten registration, (i) make such representations and
warranties, subject to the Company's ability to do so, to the
Holders of such Registrable Securities and the underwriters with
respect to the business of the Company and its subsidiaries, the
Registration Statement, Prospectus and documents incorporated by
reference or deemed incorporated by reference, if any, in each
case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings and confirm the
same if and when requested; (ii) use its reasonable efforts to obtain
opinions of counsel to the Company and updates thereof (which
counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters, if any,
Special Counsel and the Holders of a majority of the Registrable
Securities being sold) addressed to each of the underwriters
covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be
reasonably requested by such Special Counsel and Managing
Underwriters; (iii) use its reasonable efforts to obtain
14
"cold comfort" letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary,
any other certified public accountants of any subsidiary of the
Company or any business acquired or to be acquired by the Company
for which financial statements and financial data is, or is
required to be, included in the Registration Statement),
addressed to each of the Managing Underwriters, if any, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
Underwritten Offerings; (iv) and deliver such documents and
certificates as may be reasonably requested by the holders of a
majority of the Registrable Securities being sold, the Special
Counsel and the Managing Underwriters, if any, to evidence the
continued validity of the representations and warranties of the
Company and its subsidiaries made pursuant to clause (i) above
and to evidence compliance with any customary conditions
contained in the underwriting agreement or other agreement
entered into by the Company. The above shall be done at each
closing under such underwriting or similar agreement as and to
the extent required thereunder.
(l) If requested in connection with a disposition of
Registrable Securities pursuant to Registration Statement, make
available for inspection by a representative of the Holders of
Registrable Securities being sold, any Managing Underwriter
participating in any disposition of Registrable Securities, if
any, and any attorney or accountant retained by such selling
Holders or underwriter, financial and other records, pertinent
corporate documents and properties of the Company and its
subsidiaries, and cause the executive officers, directors and
employees of the Company and its subsidiaries to supply all
information reasonably requested by any such representative,
Managing Underwriter, attorney or accountant in connection with
such disposition; subject to reasonable assurances by each such
person that such information will only be used in connection with
matter relating to such Registration Statement.
(m) Comply with all applicable rules and regulations of the
SEC and make generall available to its securityholders earning
statements (which need not be audited) satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) 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 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 commencing after the
effective date of a Registration Statement, which statements
shall cover said 12-month periods.
15
(n) Cooperate with the selling holders of Registrable
Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and enable such Registrable
Securities to be in such denominations and registered in such
names as the holders may request.
(o) Provide a CUSIP number for all Registrable Securities
not later than the effective date of the Registration Statement
and provide the Trustee under the Indenture and the transfer
agent for the Common Stock with printed certificates for the
Registrable Securities which are in a form eligible for deposit
with the Depositary Trust Company.
(p) Cause all Registrable Securities covered by the
Registration Statement to be listed on each securities exchange
or quotation system on which the Company's Common Stock is then
listed no later than the date the Registration Statement is
declared effective and, in connection therewith, to the extent
applicable, to make such filings under the Exchange Act (e.g.,
the filing of a Registration Statement on Form 8-A) and to have
such filings declared effective thereunder.
(q) Cooperate and assist in any filings required to be made
with the National Association of Securities Dealers, Inc.
SECTION 4. Holder's Obligations. Each Holder agrees, by
acquisition of the Convertible Notes and Registrable Securities,
that no Holder of Registrable Securities shall be entitled to
sell any of such Registrable Securities pursuant to a
Registration Statement or to receive a Prospectus relating
thereto, unless such Holder has furnished the Company with the
notice required pursuant to Section 2(d) hereof (including the
information required to accompany such notice) and, promptly
after the Company's request, such other information regarding
such Holder and the distribution of such Registrable Securities
as the Company may from time to time reasonably request. The
Company may exclude from such registration the Registrable
Securities of any Holder who does not furnish such information
provided above for so long as such information is not so
furnished. Each Holder of Registrable Securities as to which any
Registration Statement is being effected 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 Holder not misleading. Any sale of any
Registrable Securities by any Holder shall constitute a
representation and warranty by such Holder that the information
relating to such Holder and its plan of distribution is as set
forth in the Prospectus delivered by such Holder in connection
with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact
relating to such Holder or its plan of distribution and
16
that such Prospectus does not as of the time of such sale omit to
state any material fact relating to such Holder or its plan of
distribution necessary to make the statements in such Prospectus,
in light of the circumstances under which they were made, not
misleading.
SECTION 5. Registration Expenses. All fees and expenses
incident to the Company's performance of or compliance with
this Agreement shall be borne by the Company whether or not any
of the Registration Statements become effective. Such fees and
expenses shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and expenses (x)
with respect to filings required to be made with the National
Association of Securities Dealers, Inc. and (y) of compliance
with federal securities or Blue Sky laws (including, without
limitation, fees and disbursements of Special Counsel in
connection with Blue Sky qualifications of the Registrable
Securities laws of such jurisdictions as the Managing
Underwriters, if any, or Holders of a majority of the Registrable
Securities being sold may designate), (ii) printing expenses
(including, without limitation, expenses of printing certificates
for Registrable Securities in a form eligible for deposit with
The Depositary Trust Company and of printing prospectuses if the
printing of prospectuses is requested by the Special Counsel or
the holders of a majority of the Registrable Securities included
in any Registration Statement), (iii) reasonable fees and disbursements
of Trustee and its counsel and of the registrar and transfer
agent for the Common Stock, (iv) messenger, telephone and delivery
expenses relating to the performance of the Company's obligations
hereunder, (v) reasonable fees and disbursements of counsel for the
Company and the Special Counsel in connection with the Shelf
Registration (provided that the Company shall not be liable for
the fees and expenses of more than one separate firm for all
parties participating in any transaction hereunder), (vi)
fees and disbursements of all independent certified public
accountants referred to in Section 3(k)(iii) hereof (including
the expenses of any special audit and "cold comfort" letters
required by or incident to such performance) and (vii) Securities Act
liability insurance obtained by the Company in its sole
discretion. In addition, the Company shall pay its internal
expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit, the fees and
expenses incurred in connection with the listing of the
securities to be registered on any securities exchange on which
similar securities issued by the Company are then listed and the
fees and expenses of any person, including special experts,
retained by the Company. Notwithstanding the provisions of this
Section 5, each seller of Registrable Securities shall pay all
registration expenses to the extent the Company is prohibited by
applicable Blue Sky laws from paying for or on behalf of such
seller of Registrable Securities.
17
SECTION 6. Indemnification. (a) Indemnification by the
Company. The Company shall indemnify and hold harmless each
Holder and each person, if any, who controls any Holder (within
the meaning of either Section 15 of the Securities Act or Section
20(a) of the Exchange Act) from and against all losses,
liabilities, claims, damages and expenses (including, without
limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or
claim) (collectively, "Losses"), arising out of or based upon any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or Prospectus or in any
amendment or supplement thereto or in any preliminary prospectus,
or arising out of or 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 not misleading, except
insofar as such Losses arise out of or based upon the information
relating to any Holder furnished to the Company in writing by
such Holder expressly for use therein; provided, that the Company
shall not be liable to any holder of Registrable Securities (or
any person controlling such Holder) to the extent that any such
Losses arise out of or are based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in
any preliminary prospectus if either (A) (i) such Holder failed to
send or deliver a copy of the Prospectus with or prior to the
delivery of written confirmation of the sale by such Holder to
the person asserting the claim from which such Losses arise and (ii)
the Prospectus would have corrected such untrue statement or
alleged untrue statement or such omission or alleged omission, or
(B) (x) such untrue statement or alleged untrue statement,
omission or alleged omission is corrected in an amendment or
supplement to the Prospectus and (y) having previously been
furnished by or on behalf of the Company with copies of the
Prospectus as so amended or supplemented, such holder thereafter
fails to deliver such Prospectus as so amended or supplemented,
with or prior to the delivery of written confirmation of the sale
of a Registrable Security to the person asserting the claim from
which such Losses arise. The Company shall also indemnify each
underwriter and each person who controls such person (within the
meaning of Section 15 of the Securities Act or Section 20(a) of
the Exchange Act) to the same extent and with the same
limitations as provided above with respect to the indemnification
of the holders of Registrable Securities.
(b) Indemnification by Holder of Registrable Securities.
Each Holder agrees severally and not jointly to indemnify and
hold harmless the Company, its directors, its officers who sign a
Registration Statement, and each person, if any, who controls the
Company (within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act), from and
against all losses arising out of or based upon any untrue
statement of a material fact contained in any Registration
Statement, Prospectus or preliminary prospectus or arising out of
or based upon any omission of a material fact required to be
stated therein or
18
necessary to make the statements therein not misleading, to the
extent, but only to the extent, that such untrue statement or
omission is contained in any information relating to such Holder
so furnished in writing by such Holder to the Company expressly
for use in such Registration Statement or Prospectus. In no event
shall the liability of any selling holder of Registrable
Securities hereunder be greater in amount than the dollar amount
of the proceeds received by such holder upon the sale of the
Registrable Securities giving rise to such indemnification
obligation.
(c) Conduct of Indemnification Proceedings. In case any
proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may
be sought pursuant to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any
such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (a) the fees and expenses of more
than one separate firm (in addition to any local counsel) for all
Holders and all persons, if any, who control any Holder within
the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act, and (b) the fees and expenses of more
than one separate firm (in addition to any local counsel) for the
Company, its directors, its officers who sign a Registration
Statement and each person, if any, who controls the Company
within the meaning of either such Section, and that all such fees
and expenses shall be reimbursed as they are incurred. In the
case of any such separate firm for the Company, and such
directors, officers and control persons of the Company, such firm
shall be designated in writing by the Company. The indemnifying
party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an
19
indemnifying party to reimburse the indemnified party for fees
and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that
it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party
of the aforesaid request and (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying
party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder
by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matter of such
proceeding.
Contribution. To the extent that the indemnification
provided for in this Section 6 is unavailable to an indemnified
party under Section 6(a) or 6(b) hereof in respect of any Losses
or is insufficient to hold such indemnified party harmless, then
each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable
by such indemnified party as a result of such Losses, (i) in such
proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and
the indemnified party or parties on the other hand or
(ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties
on the other hand in connection with the statements or omissions
that resulted in such Losses, as well as any other relevant
equitable considerations. Benefits received by the Company shall
be deemed to be equal to the total net proceeds from the initial
placement (before deducting expenses) of the Convertible Notes
pursuant to the Purchase Agreement. Benefits received by any
Holder shall be deemed to be equal to the value of receiving
Underlying Common Stock that is registered under the Securities
Act. The relative fault of the Holders on the one hand and the
Company on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the
Holders or by the Company and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Holders' respective
obligations to contribute pursuant to this paragraph are several
in proportion to the respective number of Registrable Securities
they have sold pursuant to a Registration Statement, and not
joint.
20
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were
determined by pro rata allocation or by any other method or
allocation that does not take into account the equitable
considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as
a result of the Losses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding this Section
6(d), an indemnifying party that is a selling Holder of
Registrable Securities shall not be required to contribute any
amount in excess of the amount by which the total price at which
the Registrable Securities sold by such indemnifying party and
distributed to the public were offered to the public exceeds the
amount of any damages which such indemnifying party has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement
obligations of the Company hereunder shall be in addition to any
liability the Company may otherwise have hereunder, under the
Purchase Agreement or otherwise. The provisions of this Section 6
shall survive so long as Registrable Securities remain
outstanding, notwithstanding any transfer of the Registrable
Securities by any holder or any termination of this Agreement.
The indemnity and contribution provisions contained in this
Section 6 shall rem ain 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 the Company, its officers or directors
or any person controlling the Company and (iii) the sale of any
Registrable Securities by any Holder.
SECTION 7. Information Requirements. (a) The Company shall
file the reports required to be filed by it under the Securities
Act and the Exchange Act, and if at any time the Company is not
required to file such reports, it will, upon the request of any
holder of Registrable Securities, make publicly available, except
during a Deferral Period, other information so long as necessary
to permit sales of Convertible Notes and Underlying Common Stock
pursuant to Rule 144 and Rule 144A under the Securities Act. The
Company further covenants that it will cooperate with any holder
of Registrable Securities and take such further reasonable action
as any holder of Registrable Securities may reasonably request
(including, without limitation, making such reasonable
representations as any
21
such holder may reasonably request), all to the extent required
from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within
the limitation of the exemptions provided by Rule 144 and Rule
144A under the Securities Act. Upon the request of any holder of
Registrable Securities, the Company shall deliver to such holder
a written statement as to whether it has complied with such
filing requirements. Notwithstanding the foregoing, nothing in
this Section 7 shall be deemed to require the Company to register
any of its securities under any section of the Exchange Act.
(b) The Company shall file the reports required to be filed
by it under the Exchange Act and shall comply with all other
requirements set forth in the instructions to Form S-3 in order
to allow the Company to be eligible to file registration
statements on Form S-3.
SECTION 8. Submission to Jurisdiction. The Company
irrevocably consents and agrees, for the benefit of the Holders,
that any legal action, suit or proceeding against it with respect
to its obligations, liabilities or any other matter arising out
of or in connection with this Agreement may be brought in the
courts of the State of New York or the courts of the United
States located in The City of New York and hereby irrevocably
consents and submits to the non-exclusive jurisdiction of each
such court in personam, generally and unconditionally, with
respect to any such action, suit or proceeding for itself and in
respect of its properties, assets and revenues.
The Company has irrevocably designated, appointed and
empowered Xxxxxxxx X. Camera, Vice President, General Counsel and
Secretary of the Company, as its designee, appointee and agent to
receive, accept and acknowledge for and on its behalf, and its
properties, assets and revenues, service of any and all legal
process, summons, notices and documents which may be served in
any such action, suit or proceeding referred to in the preceding
paragraph of this Section 8 brought in any United States or State
court that may be made on such designee, appointee and agent in
accordance with legal procedures prescribed for such courts. Said
designation and appointment shall be irrevocable until the end of
the Effectiveness Period, provided, however, that if for any
reason such designee, appointee and agent hereunder shall cease
to be available to act as such, the Company agrees to designate a
new designee, appointee and agent in The City of New York on the
terms and for the purposes of this Section 8 satisfactory to the
Initial Purchasers. The Company further hereby irrevocably
consents and agrees to the service of any and all legal process,
summons, notices and documents out of any of the aforesaid courts
in any such action, suit, or proceeding by serving a copy thereof
upon the relevant agent for service of process referred to in
this Section 8 (whether or not the appointment of such agent
22
shall for any reason prove to be ineffective or such agent shall
accept or acknowledge such service) or by mailing copies thereof
by registered or certified air mail, postage prepaid, to the
Company at its address specified in or designated pursuant to
Section 9 of this Agreement. The Company agrees that the failure
of such designee, appointee and agent to give any notice of such
service to it shall not impair or effect in any way the validity
of such service or any judgment rendered in any action or
proceeding based thereon. Nothing herein shall in any way be
deemed to limit the ability of the Notice Holders or the holders
of the Convertible Notes or the Underlying Common Stock, to serve
any such legal process, summons, notices and documents in any
other manner permitted by applicable law or to obtain
jurisdiction over the Company or bring actions, suits or
proceedings against the Company in such other jurisdictions, and
in such manner, as may be permitted by applicable law. The
Company hereby irrevocably and unconditionally waives, to the
fullest extent permitted by law, any objection which it may now,
or until the end of the Effectiveness Period, have to the laying
of venue or any of the aforesaid actions, suits or proceedings
arising out of or in connection with this Agreement brought in
the United States Federal courts located in The City of New York
or the courts of the States of New York and hereby further
irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient
forum.
The provisions of this Section 8 shall survive any
termination of this Agreement, in whole or in part.
SECTION 9. Miscellaneous. (a) Remedies. In the event of a
breach by the Company of its obligations under this Agreement, each
holder of Registrable Securities, in addition to being entitled
to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights
under this Agreement, provided, that the sole damages payable for
a violation of the terms of this Agreement for which liquidated
damages are expressly provided pursuant to Section 2(e) hereof
shall be such liquidated damages. The Company agrees that
monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of any of the provisions of
this Agreement and hereby further agrees that, in the event of
any action for specific performance in respect of such breach, it
shall waive the defense that a remedy at law would be adequate.
(b) No Conflicting Agreements. The Company has not, as of
the date hereof, and shall not, on or after the date of this
Agreement, enter into any agreement with respect to its
securities which conflicts with the rights granted to the holders
of Registrable Securities in this Agreement. The Initial
Purchasers acknowledge that the Registration Rights Agreements
between the Company and
23
certain of holders of its Common Stock, as provided to the
Initial Purchasers, do not conflict with the rights granted to
the holders of Registrable Securities in this Agreement. The
Company represents and warrants that the rights granted to the
holders of Registrable Securities hereunder do not in any way
conflict with the rights granted to the holders of the Company's
securities under any other agreements.
(c) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless
the Company has obtained the written consent of holders of a
majority of the then outstanding Underlying Common Stock
constituting Registrable Securities (with holders of Convertible
Notes deemed to be the holders, for purposes of this Section, of
the number of outstanding shares of Underlying Common Stock into
which such Debentures are convertible or exchangeable).
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 the
rights of other holders of Registrable Securities may be given by
holders of at least a majority of the Registrable Securities
being sold by such holders; provided, that the provisions of this
sentence may not be amended, modified, or supplemented except in
accordance with the provisions of the immediately preceding
sentence.
(d) Notices. All notices and other communications provided
for or permitted hereunder shall deemed given (i) when made, if
may by hand delivery, (ii) upon confirmation, if made by
telecopier or (iii) one (1) business day after being deposited
with a reputable next-day courier, postage prepaid, to the
parties as follows (provided that with respect to any notice of
intention to sell given by a Holder to the Company pursuant to
Section 2(d) hereof in accordance with this Section 9(d) which is
given on or after December 24 of any year and on or prior to
January 1 of the next year, such notice shall only be deemed
given upon the earlier of actual receipt of such notice by an
attorney in the Legal Department of the Company or the first
Business Day next succeeding such January 1):
(x) if to a holder of Registrable Securities, at the
most current address given by such holder to the Company in
accordance with the provisions of Section 9(e);
24
(y) if to the Company, to:
The Interpublic Group of Companies, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Camera, General Counsel
Telecopy No.: (000) 000-0000
with a copy to:
The Interpublic Group of Companies, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Vice President &
Treasurer
Telecopy No.: (000) 000-0000
and
(z) if to the Special Counsel, to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Dallas
Telecopy No.: (000) 000-0000
or to such other address as such person may have
furnished to the other persons identified in this
Section 9(d) in writing in accordance herewith.
(e) Owner of Registrable Securities. The Company will
maintain, or will cause its registrar and transfer agent to
maintain, a register with respect to the Registrable Securities
in which all transfers of Registrable Securities of which the
Company has received notice will be recorded. The Company may
deem and treat the person in whose name Registrable Securities
are registered in such register of the Company as the owner
thereof for all purposes, including, without limitation, the
giving of notices under this Agreement.
(f) Approval of Holders. Whenever the consent or approval of
holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Company or
its affiliates (as such term is defined in Rule 405 under the
Securities Act) (other than the Initial Purchasers or
25
subsequent holders of Registrable Securities if such subsequent
holders are deemed to be such affiliates solely by reason of
their holdings of such Registrable Securities) shall not be
counted in determining whether such consent or approval was given
by the holders of such required percentage.
(g) Successors and Assigns. Any person who purchases any
Registrable Securities from an Initial Purchasers shall be
deemed, for purposes of this Agreement, to be an assignee of such
Initial Purchasers. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the
parties and shall inure to the benefit of and be binding upon
each holder of any Registrable Securities.
(h) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be original and all of which taken together shall constitute one
and the same agreement.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(j) 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 WITHIN THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
(k) Severability. If any term, provision, covenant or
restriction of this Agreement is held to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated thereby, and the parties hereto shall use their best
efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by
such term, provision, covenant or restriction. It 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 which
may be hereafter declared invalid, void or unenforceable.
(l) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is intended
to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein and the registration rights granted by
the Company with respect to the Convertible Notes and the
Underlying Common
26
Stock of the Company into which Convertible Notes are convertible
or exchangeable sold pursuant to the Purchase Agreement. Except
as provided in the Purchase Agreement, there are no restrictions,
promises, warranties or undertakings, other than those set forth
or referred to herein, with respect to the registration rights
granted by the Company with respect to the Convertible Notes and
the Underlying Common Stock of the Company into which the
Convertible Notes are convertible or exchangeable. This Agreement
supersedes all prior agreements and undertakings among the
parties with respect to such registration rights.
(m) Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision
hereof is validly asserted as a defense, the prevailing party, as
determined by the court, shall be entitled to recover reasonable
attorneys' fees in addition to any other available remedy.
(n) Further Assurances. Each of the parties hereto
shall use all reasonable efforts to take, or cause to be taken,
all appropri ate action, do or cause to be done all things
reasonably necessary, proper or advisable under applicable law,
and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and the
other documents contemplated hereby and consummate and make
effective the transactions contemplated hereby.
(o) Termination. This Agreement and the obligations of the
parties hereunder shall terminate upon the end of the
Effectiveness Period, except for any liabilities or obligations
under Sections 4, 5 or 6 hereof and the obligations to make
payments of and provide for liquidated damages under Section 2(e)
hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in
accordance with their terms.
27
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
THE INTERPUBLIC GROUP OF
COMPANIES, INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------
Name: XXXX X. XXXXXXX
Title: VICE PRESIDENT
& TREASURER
Accepted as of the date first
above written:
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX, SACHS & CO
SBC WARBURG DILLON READ INC.
By: XXXXXX XXXXXXX & CO. INCORPORATED
By: __________________________
Name:
Title:
