EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of May 7, 2001, by and among International Flavors & Fragrances
Inc., a New York corporation (the "Company") and Xxxxxxx Xxxxx Xxxxxx Inc., Banc
One Capital Markets, Inc., First Union Securities Inc. and Tokyo-Mitsubishi
International plc, in their respective capacities as initial purchasers and as
representatives of each of the other initial purchasers named in Schedule I to
the Purchase Agreement referred to below (collectively, the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated May 7,
2001, by and among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of $700,000,000 aggregate principal amount of its 6.45% Notes due
2006 (the "Securities").
In order to induce the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the Initial Purchasers'
obligations thereunder, the Company has agreed to provide to the Initial
Purchasers and their respective direct and indirect transferees and assigns the
registration rights set forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Closing Date" shall mean the Closing Date as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble and
also includes the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company, including any agent thereof
provided, however, that any such depositary must at all times have an
address in the Borough of Manhattan, in The City of New York.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations of the SEC
promulgated thereunder.
"Exchange Securities" shall mean the Securities issued by the
Company under the Indenture, containing terms identical to the
Securities (except that (i) interest thereon shall accrue from the last
date on which interest was paid on the Securities or, if no such
interest has been paid, from the Closing Date, (ii) the transfer
restrictions thereon shall be eliminated
and (iii) certain provisions relating to an increase in the,
stated rate of interest thereon shall be eliminated) which are to be
offered to Holders of Registrable Securities in exchange for
Registrable Securities pursuant to the Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange
offer registration statement on Form S-4 covering the Registrable
Securities (or, if applicable, on another appropriate form), and all
amendments and supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Holders" shall mean the Initial Purchasers, for so long as they
own any Registrable Securities, and each of their respective
successors, assigns and direct and indirect transferees who become
registered owners of Registrable Securities under the Indenture.
"Indenture" shall mean the Indenture dated as of May 1, 2001,
among the Company and Bank One Trust Company, N.A., as Trustee,
relating to the Securities and the Exchange Securities and as the same
may be amended and supplemented from time to time in accordance with
the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the
preamble of this Agreement.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Registrable Securities outstanding;
provided that whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company, or any of its affiliates
(as such term is defined in Rule 405 under the Securities Act) (other
than the Initial Purchasers or subsequent holders of Registrable
Securities), if such subsequent holders are deemed to be such
affiliates solely by reason of their holding of such Registrable
Securities, shall be disregarded in determining whether such consent or
approval was given by the Holders of such required percentage or
amount.
"NASD" shall mean the National Association of Securities Dealers,
Inc.
"Person" shall mean an individual, partnership, joint venture,
limited liability company, corporation, trust or unincorporated
organization, or a government or agency or political subdivision
thereof.
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"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement,
including a prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by a
Shelf Registration Statement, and by all other amendments and
supplements to a prospectus, including post- effective amendments, and
in each case including all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble of this Agreement.
"Registrable Securities" shall mean the Securities; provided,
however, that the Securities shall cease to be Registrable Securities
when (i) a Registration Statement with respect to such Securities shall
have been declared effective under the Securities Act and such
Securities shall have been disposed of pursuant to such Registration
Statement, (ii) such Securities shall have been sold to the public
pursuant to Rule 144 (or any similar provision then in force, but not
Rule 144A) under the Securities Act, (iii) such Securities shall have
ceased to be outstanding or(iv) such Securities have been exchanged for
Exchange Securities upon consummation of the Exchange Offer.
"Registration Default" shall have the meaning set forth in Section
2(e) of this Agreement.
"Registration Expenses" shall mean any and all expenses incident
to performance of or compliance by the Company with this Agreement,
including without limitation: (i) all SEC, stock exchange or NASD
registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state or other securities or blue sky
laws and compliance with the rules of the NASD (including reasonable
fees and disbursements of counsel for any underwriters or Holders in
connection with state or other securities or blue sky qualification of
any of the Exchange Securities or Registrable Securities), (iii) all
expenses of any Persons in preparing, printing and distributing any
Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements,
certificates representing the Exchange Securities and other documents
relating to the performance of and compliance with this Agreement, (iv)
all rating agency fees, (v) all fees and expenses incurred in
connection with the listing, if any, of any of the Exchange Securities
or such Registrable Securities, covered by a Shelf Registration
Statement, as applicable, on any securities exchange or exchanges, (vi)
all fees and disbursements relating to the qualification of the
Indenture under applicable securities laws, (vii) the fees and
disbursements of counsel for the Company and the fees and expenses of
the independent public accountants of the Company, including the
expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance, (viii) the fees and
expenses of a "qualified independent underwriter" as defined by Conduct
Rule 2720 of the NASD (if required by the NASD rules) in connection
with the offering ofthe Registrable
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Securities and the reasonable fees and expenses of its counsel,
(ix) the reasonable fees and expenses of the Trustee, any registrar,
any depositary and paying agent, including their respective counsel,
and any escrow agent or custodian, (x) the reasonable fees and expenses
of the Initial Purchasers in connection with the Exchange Offer,
including the reasonable fees and expenses of counsel to the Initial
Purchasers, (xi) the reasonable fees and expenses of one counsel to the
Holders which shall be Xxxxx, Xxxxx & Xxxxx in connection with the
Shelf Registration Statement, and (xii) in the case of an underwritten
offering, any reasonable fees and disbursements of the underwriters
customarily required to be paid by issuers or sellers of such
securities, including the reasonable fees and expenses of counsel to
the underwriters, and the fees and expenses of any special experts
retained by the Company in connection with any Registration Statement
but excluding (except as otherwise provided herein) fees of counsel to
the underwriters or the Holders and underwriting.
"Registration Statement" shall mean any registration statement of
the Company relating to any offering of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement,
and all amendments and supplements to any such Registration Statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"Shelf Registration" shall mean a registration effected pursuant
to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of
this Agreement which covers all of the Registrable Securities on an
appropriate form under Rule 415 under the Securities Act, or any
similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference
therein.
"Trustee" shall mean the trustee under the Indenture.
2. Registration Under the Securities Act.
(a) Exchange Offer Registration. To the extent not prohibited by
any applicable law or applicable interpretation of the staff of the
SEC, the Company shall (A) use reasonable best efforts to file with the
SEC within 90 calendar days after the Closing Date an Exchange Offer
Registration Statement covering the offer by the Company to the Holders
to exchange
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all of the Registrable Securities for Exchange Securities, (B) use its
reasonable best efforts to cause such Exchange Offer Registration
Statement to be declared effective by the SEC within 180 calendar days
after the Closing Date, (C) use its reasonable best efforts to cause
such Registration Statement to remain effective until the closing of
the Exchange Offer and (D) use its reasonable best efforts to
consummate the Exchange Offer within 210 calendar days after the
Closing Date. The Exchange Securities will be issued under the
Indenture. Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Exchange Offer, it
being the objective of such Exchange Offer to enable each Holder
(other than Participating Broker-Dealers (as defined in Section 3(f))
eligible and electing to exchange Registrable Securities for Exchange
Securities (assuming that such Holder is not an affiliate of the
Company within the meaning of Rule 405 under the Securities Act,
acquires the Exchange Securities in the ordinary course of such
Holder's business and has no arrangements or understandings with any
person to participate in the Exchange Offer for the purpose of
distributing the Exchange Securities) to trade such Exchange
Securities from and after their receipt without any limitations or
restrictions under the Securities Act and without material
restrictions under the securities laws of a substantial proportion of
the several states of the United States.
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 30
business days (or longer if required by applicable federal and
state securities laws) after the date notice thereof is mailed to
the Holders;
(iii) use the services of the Depositary for the Exchange
Offer with respect to Securities evidenced by global certificates;
(iv) permit Holders to withdraw tendered Registrable
Securities at any time prior to the close of business, New York
City time, on the last business day on which the Exchange Offer
shall remain open, by sending to the institution specified in the
notice, a telegram, telex, facsimile transmission or letter
setting forth the name of such Holder, the principal amount of
Registrable Securities delivered for exchange, and a statement
that such Holder is withdrawing its election to have such
Securities exchanged; and
(v) otherwise comply in all material respects with all
applicable federal and state securities laws relating to the
Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
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(i) accept for exchange Registrable Securities duly tendered
and not validly withdrawn pursuant to the Exchange Offer in
accordance with the terms of the Exchange Offer Registration
Statement and the letter of transmittal which is an exhibit
thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange
by the Company; and
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Securities to each Holder of Registrable Securities equal
in principal amount to the principal amount of the Registrable
Securities of such Holder so accepted for exchange. Interest on
each Exchange Note will accrue from the last date on which
interest was paid on the Registrable Securities surrendered in
exchange therefor or, if no interest has been paid on the
Registrable Securities, from the Closing Date. The Exchange Offer
shall not be subject to any conditions, other than (i) that the
Exchange Offer, or the making of any exchange by a Holder, does
not violate applicable law or any applicable interpretation of the
staff of the SEC, (ii) that no action or proceeding shall have
been instituted or threatened in any court or before any
governmental agency with respect to the Exchange Offer which, in
the judgment of the Company, would impair the ability of the
Company to proceed with the Exchange Offer, (iii) that no law,
rule or regulation or applicable interpretations of the staff of
the SEC has been issued or promulgated which, in the good faith
determination of the Company, does not permit the Company to
effect the Exchange Offer and (iv) that the Holders tender the
Registrable Securities to the Company in accordance with the
Exchange Offer.
Each Holder of Registrable Securities (other than Participating
Broker-Dealers) who wishes to exchange such Registrable Securities for
Exchange Securities in the Exchange Offer shall have represented that
(i) it is not an affiliate (as defined in Rule 405 under the Securities
Act) of the Company or, if it is an affiliate, it will comply with the
registration and prospectus delivery requirements of the Securities
Act, to the extent applicable, (ii) any Exchange Securities to be
received by it will be acquired in the ordinary course of business,
(iii) at the time of the commencement of the Exchange Offer, it has no
arrangement with any Person to participate in the distribution (within
the meaning of the Securities Act) of the Securities or the Exchange
Securities, (iv) it is not acting on behalf of any person who could not
truthfully make the foregoing representations and (v) it shall have
made such other representations as may be reasonably necessary under
applicable SEC rules, regulations or interpretations to render the use
of Form S-4 or another appropriate form under the Securities Act
available or for the Exchange Offer Registration Statement to be
declared effective. To the extent permitted by law, the Company shall
inform the Initial Purchasers of the names and addresses of the Holders
to whom the Exchange Offer is made, and the Initial Purchasers shall
have the right to contact such Holders and otherwise facilitate the
tender of Registrable Securities in the Exchange Offer.
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(b) Shelf Registration.
(i) If, because of any change in law or applicable
interpretations thereof by the Staff of the SEC, the Company is
not permitted to effect the Exchange Offer as contemplated by
Section 2(a) hereof, (ii) if for any other reason the Exchange
Offer Registration Statement is not declared effective within 180
calendar days following the Closing Date or the Exchange Offer is
not consummated within 210 calendar days after the Closing Date
(provided that, if the Exchange Offer Registra tion Statement
shall be declared effective after such 180-day period or if the
Exchange Offer shall be consummated after such 210-day period,
then the Company's obligations under this clause (ii) arising from
the failure of the Exchange Offer Registration Statement to be
declared effective within such 180-day period or the failure of
the Exchange Offer to be consummated within such 210-day period,
respectively, shall terminate), (iii) if any Holder (other than an
Initial Purchaser) is not eligible to participate in the Exchange
Offer or elects to participate in the Exchange Offer but does not
receive fully tradeable Exchange Securities pursuant to the
Exchange Offer or (iv) upon the written request of any of the
Initial Purchasers within 90 days following the consummation of
the Exchange Offer; provided that such Initial Purchaser shall
hold Registrable Securities that it acquired directly from the
Company and that such Initial Purchaser is not permitted, in the
reasonable opinion of counsel to such Initial Purchaser, pursuant
to applicable law or applicable interpretation of the staff of the
SEC, to participate in the Exchange Offer, the Company shall, at
their cost:
(A) as promptly as practicable, but no later than the
30th calendar day after such filing obligation arises, use
its reasonable best efforts to file with the SEC a Shelf
Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by the
Majority Holders of such Registrable Securities and set forth
in such Shelf Registration Statement;
(B) use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the SEC as
promptly as practicable; provided that, with respect to
Exchange Securities received by a broker- dealer in exchange
for any securities that were acquired by such broker-dealer
as a result of market-making or other trading activities, the
Company may, if permitted by current interpretations by the
staff of the SEC, file a post- effective amendment to the
Exchange Offer Registration Statement containing the
information required by Regulation S-K Items 507 and/or 508,
as applicable, in satisfaction of its obligations under
paragraph (A) solely with respect to broker-dealers who
acquired their Securities as a result of market-making or
other trading activities, and any such Exchange Offer
Registration Statement, as so amended, shall be referred to
herein as, and
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governed by the provisions herein applicable to, a Shelf
Registration Statement. In the event that the Company is
required to file a Shelf Registra tion Statement upon the
request of any Holder (other than an Initial Purchaser) not
eligible to participate in the Exchange Offer pursuant to
clause (iii) above or upon the request of any Initial
Purchaser pursuant to clause (iv) above, the Company shall
file and use their reasonable best efforts to have declared
effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all
Registrable Securities and a Shelf Registration Statement
(which may be a combined Registration Statement with the
Exchange Offer Registration Statement) with respect to offers
and sales of Registrable Securities held by such Holder or
such Initial Purchaser, as applicable, after completion of
the Exchange Offer;
(C) use their reasonable best efforts to keep the Shelf
Registration Statement continuously effective, supplemented
and amended as required, in order to permit the Prospectus
forming part thereof to be usable by Holders for a period of
two years, plus any extensions as provided in Section
2(d)(iii) below, after its effective date or such shorter
period which will terminate when all of the Registrable
Securities covered by the Shelf Registration Statement (i)
have been sold pursuant to the Shelf Registration Statement,
(ii) cease to be outstanding or (iii) become eligible for
resale pursuant to Rule 144 under the Exchange Act without
volume restrictions; and
(D) notwithstanding any other provisions hereof ensure
that (i) any Shelf Registration Statement and any amendment
thereto and any Prospectus forming a part thereof and any
supplement thereto complies in all material respects with the
Securities Act and the rules and regulations thereunder, (ii)
any Shelf Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading and (iii) any Prospectus
forming part of any Shelf Registration Statement, and any
supplement to such Prospectus (as amended or supplemented
from time to time), does not include an untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements, in light of the circumstances
under which they were made, not misleading; provided,
however, clauses (ii) and (iii) shall not apply to any
information relating to any Initial Purchaser or any Holder
furnished to the Company in writing by such Initial Purchaser
or Holder expressly for use in the Shelf Registration
Statement.
The Company shall not permit any securities other than the Registrable
Securities to be included in the Shelf Registration Statement.
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The Company further agrees, if necessary, to supplement or amend the
Shelf Registration Statement if reasonably requested by the Majority Holders
with respect to information relating to the Holders and otherwise as required by
Section 3(b) below, to use their reasonable best efforts to cause any such
amendment to become effective and such Shelf Registration Statement to become
usable as soon as practicable thereafter and to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Sections 2(a) and 2(b)
and, in the case of any Shelf Registration Statement, will reimburse
the Holders or the Initial Purchasers for the reasonable fees and
disbursements of one counsel designated in writing by the Majority
Holders to act as counsel for the Holders of the Registrable Securities
in connection therewith. Each Holder shall pay all expenses of its
counsel other than as set forth in the preceding sentence, underwriting
discounts and commissions and transfer taxes, if any, relating to the
sale or disposition of such Holder's Registrable Securities pursuant to
a Shelf Registration Statement.
(d) Effective Registration Statement.
(i) The Company shall be deemed not to have used its
respective reasonable best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the
case may be, to become, or to remain, effective during the
requisite periods set forth herein if the Company voluntarily
takes any action that could reasonably be expected to result in
any such Registration Statement not being declared effective or
remaining effective or in the Holders of Registrable Securities
covered thereby not being able to exchange or offer and sell such
Registrable Securities during that period unless (A) such action
is required by applicable law or (B) such action is taken by the
Company in good faith and for valid business reasons (but not
including avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets or a material
corporate transaction or event so long as the Company promptly
complies with the requirements of Section 3(k) hereof, if
applicable.
(ii) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to
Section 2(b) hereof shall not be deemed to have become effective
unless it has been declared effective by the SEC; provided,
however, that if, after it has been declared effective, the
offering of Registrable Securities pursuant to a Registration
Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental
agency or court, such Registration Statement shall be deemed not
to have been effective during the period of such interference,
until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume.
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(iii) During any 365-day period, the Company may suspend the
availability of a Shelf Registration Statement and the use of the
related Prospectus, as provided in Section 3(e)(vi) and the last
paragraph of Section 3 hereof (a "Material Event Election"), for
up to 4 periods of up to 45 consecutive days (except for the
consecutive 45-day period immediately prior to maturity of the
Securities), but no more than an aggregate of 90 days during any
365-day period, if any event shall occur (A) as set forth in
Section 2(d)(i) or (B) as a result of which it shall be necessary,
in the good faith determination of the board of directors of the
Company, to amend the Shelf Registration Statement or amend or
supplement any prospectus or prospectus supplement thereunder in
order that each such document not include any untrue statement of
fact or omit to state a material fact necessary to make the
statements therein not misleading in light of the circumstances
under which they were made, provided that any period during which
the Company requires Holders to refrain from disposing of their
Registrable Securities due to a Material Event Election (an
"Election Period") shall be deemed to trigger the obligation of
the Company to pay additional interest in accordance with Section
2(e) to the extent that such Election Period, together with all
other days that the Shelf Registration Statement has become
unusable in any consecutive twelve-month period, exceeds 90 days
in the aggregate. The Two-Year Period provided for in Section
2(b)(B) above shall be extended by an amount of time equal to all
such Election Periods.
(e) Increase in Interest Rate. In the event that (i) the Exchange
Offer Registration Statement is not filed with the SEC on or prior to
the 90th calendar day after the Closing Date, (ii) the Exchange Offer
Registration Statement is not declared effective on or prior to the
180th calendar day after the Closing Date, (iii) the Exchange Offer is
not consummated on or prior to the 210th calendar day following the
Closing Date, or (iv) if required, a Shelf Registration Statement with
respect to the Registrable Securities is not declared effective on or
prior to the 210th calendar day after the Closing Date, or (v) the
Election Periods exceed, in the aggregate, 90 days during any 365-day
period (each, a "Registration Default"), the per annum interest rate
borne by the Registrable Securities affected thereby shall be increased
by one-quarter of one percent (0.25%) per annum following a
Registration Default; provided that the maximum aggregate additional
interest with respect to a series may in no event exceed one-quarter of
one percent (0.25%) per annum. Upon (v) the filing of the Exchange
Offer Registration Statement after the 90-day period described in
clause (i) above, (w) the effectiveness of the Exchange Offer
Registration Statement after the 180-day period described in clause
(ii) above, (x) the consummation of the Exchange Offer after the
210-day period described in clause (iii) above, (y) the effectiveness
of a Shelf Registration Statement, after the 210-day period described
in clause (iv) above, or (z) the termination of any Election Period
exceeding the period described in clause (v) above, the interest rate
borne by such series of Registrable Securities from the date of such
filing, effectiveness or consummation, as the case may be, shall be
reduced to the original interest rate if the Company is otherwise in
compliance with this paragraph; provided, however, that, if after any
such reduction in interest rate, a different Registration Default
occurs, the interest rate shall again be increased
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pursuant to the foregoing provisions. No increase in the rate
under clause (i), (ii) or (iii) above shall be payable for any period
during which a Shelf Registration is effective.
(f) Specific Enforcement Without limiting the remedies available
to the Initial Purchasers and the Holders, the Company acknowledges
that any failure, other than legal impossibility, by the Company to
comply with its obligations under Sections 2(a) and 2(b) hereof may
result in material irreparable injury to the Initial Purchasers or the
Holders for which there is no adequate remedy at law, that it will not
be possible to measure damages for such injuries precisely and that, in
the event of any such failure, the Initial Purchasers or any Holder may
obtain such relief as may be required to specifically enforce the
Company's obligations under Sections 2(a) and 2(b).
3. Registration Procedures. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement, within
the time periods specified in Section 2, on the appropriate form under
the Securities Act, which form (i) shall be selected by the Company,
(ii) shall, in the case of a Shelf Registration Statement, be available
for the sale of the Registrable Securities by the selling Holders
thereof and (iii) shall comply as to form in all material respects with
the requirements of the applicable form and include or incorporate by
reference all financial statements required by the SEC to be filed
therewith, and use its reasonable best efforts to cause such
Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period; cause each Prospectus to be
supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act;
and comply with the provisions of the Securities Act with respect to
the disposition of all Securities covered by each Registration
Statement during the applicable period in accordance with the intended
method or methods of distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities, at least 15 days business days prior to filing,
that a Shelf Registration Statement with respect to the Registrable
Securities is being filed and advising such Holders that the
distribution of Registrable Securities will be made in accordance with
the method elected by the Majority Holders; (ii) furnish to each Holder
of Registrable Securities, to counsel for the Initial Purchasers, to
counsel for the Holders and to each underwriter of an underwritten
offering of Registrable Securities, if any, without charge, as many
copies of each Prospectus, including each preliminary Prospectus, and
any amendment or supplement thereto and such other documents as such
Holder or underwriter, or their counsel, may reasonably request,
including financial statements and schedules and, if the Holder so
reasonably requests, all
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exhibits (including those incorporated by reference) in order to
facilitate the public sale or other disposition of the Registrable
Securities; and (iii) subject to the last paragraph of this Section 3,
hereby consent to the use of the Prospectus, including each preliminary
Prospectus, or any amendment or supplement thereto by each of the
selling Holders of Registrable Securities in connection with the
offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto;
(d) use its reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue
sky" laws of such jurisdictions as any Holder of Registrable Securities
covered by a Registration Statement and each underwriter of an
underwritten offering of Registrable Securities shall reasonably
request by the time the applicable Registration Statement is declared
effective by the SEC, to cooperate with the Holders in connection with
any filings required to be made with the NASD, keep each such
registration or qualification effective during the period such
Registration Statement is required to be effective and do any and all
other acts and things which may be reasonably necessary or advisable to
enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that the Company shall not be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but
for this Section 3(d) or (ii) take any action which would subject it to
general service of process or taxation in any such jurisdiction;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities and counsel for such Holders promptly and, if
requested by such Holder or counsel, confirm such advice in writing
promptly (i) when a Registration Statement has become effective and
when any post-effective amendments and supplements thereto become
effective, (ii) of any request by the SEC or any state securities
authority for post-effective amendments and supplements to a
Registration Statement and Prospectus or for additional information
after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) if, between the
effective date of a Registration Statement and the closing of any sale
of Registrable Securities covered thereby, the representations and
warranties of the Company contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating
to such offering cease to be true and correct in all material respects,
(v) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (vi) of the happening of any event or the
discovery of any facts during the period a Shelf Registration Statement
is effective (including as contemplated in Section 2(d)(iii) hereof)
which (A) is contemplated in Section 2(d)(i) or (B) makes any statement
made in such Shelf Registration Statement or the related Prospectus
untrue in any material respect or which requires the making of any
changes in such Shelf Registration Statement or Prospectus in order to
make the statements therein not misleading and (vii) of
12
any determination by the Company that a post-effective amendment
to a Registration Statement would be appropriate;
(f) (A) in the case of an Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution" section
covering the use of the Prospectus included in the Exchange Offer
Registration Statement by broker-dealers who have exchanged their
Registrable Securities for Exchange Securities for the resale of such
Exchange Securities, (ii) furnish to each broker-dealer who desires to
participate in the Exchange Offer, without charge, as many copies of
each Prospectus included in the Exchange Offer Registration Statement,
including any preliminary prospectus, and any amendment or supplement
thereto, as such broker-dealer may reasonably request, (iii) include in
the Exchange Offer Registration Statement a statement that any
broker-dealer who holds Registrable Securities acquired for its own
account as a result of market-making activities or other trading
activities (a "Participating Broker-Dealer"), and who receives Exchange
Securities for Registrable Securities pursuant to the Exchange Offer,
may be a statutory underwriter and must deliver a prospectus meeting
the requirements of the Securities Act in connection with any resale of
such Exchange Securities, (iv) subject to the last paragraph of this
Section 3, hereby consent to the use of the Prospectus forming part of
the Exchange Offer Registration Statement or any amendment or
supplement thereto, by any broker-dealer in connection with the sale or
transfer of the Exchange Securities covered by the Prospectus or any
amendment or supplement thereto, and (v) include in the transmittal
letter or similar documentation to be executed by an exchange offeree
in order to participate in the Exchange Offer the following provision:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in,
a distribution of Exchange Securities. If the undersigned is a
broker-dealer that will receive Exchange Securities for its own account
in exchange for Registrable Securities, it represents that the
Registrable Securities to be exchanged for Exchange Securities were
acquired by it as a result of market-making activities or other trading
activities and acknowledges that it will deliver a prospectus meeting
the requirements of the Securities Act in connection with any resale of
such Exchange Securities pursuant to the Exchange Offer; however, by so
acknowledging and by delivering a prospectus, the undersigned will not
be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act;"
(B) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, the Company shall use its
reasonable best efforts to cause to be delivered at the request of
an entity representing the Participating Broker-Dealers (which
entity shall be Xxxxxxx Xxxxx Xxxxxx Inc., unless it elects not to
act as such representative) any "cold comfort" letters with
respect to the Prospectus in the form existing on the last date
for which exchanges are accepted pursuant to the Exchange Offer
and with respect to
13
each subsequent amendment or supplement, if any, effected
during the period specified in clause (C) below;
(C) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, the Company shall use its
reasonable best efforts to maintain the effectiveness of the
Exchange Offer Registration Statement for a period of 180 days
following the closing of the Exchange Offer or such shorter period
which will terminate when the Participating Broker-Dealers have
completed all resales subject to applicable prospectus delivery
requirements; and
(D) the Company shall not be required to amend or supplement
the Prospectus contained in the Exchange Offer Registration
Statement as would otherwise be contemplated by Section 3(b)
hereof; or take any other action as a result of this Section 3(f),
for a period exceeding 180 days after the last date for which
exchanges are accepted pursuant to the Exchange Offer (as such
period may be extended by the Company) and Participating Broker-
Dealers shall not be authorized by the Company to, and shall not,
deliver such Prospectus after such period in connection with
resales contemplated by this Section 3;
(g) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (ii) in the case of a Shelf Registration,
furnish counsel for the Holders of Registrable Securities copies of any
request by the SEC or any state securities authority for amendments or
supplements to a Registration Statement and Prospectus or for
additional information;
(h) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement as soon
as practicable and provide immediate notice to each Holder of the
withdrawal of any such order,
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits
thereto, unless requested);
(j) in the case of a Shelf Registration, 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
cause such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) in a form eligible
for deposit with the Depositary and registered in such names as the
selling Holders or the underwriters, if any, may reasonably request in
writing at least one business day prior to the closing of any sale of
Registrable Securities;
14
(k) in the case of a Shelf Registration, upon the occurrence of
any event or the discovery of any facts, each as contemplated by
Section 3(e)(vi) hereof; use its reasonable best efforts to prepare a
supplement or post-effective amendment to a Registration Statement or
the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, such
Prospectus will not contain at the time of such delivery any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading. The Company agrees to notify each
Holder to suspend use of the Prospectus as promptly as practicable
after the occurrence of such an event, and each Holder hereby agrees to
suspend use of the Prospectus until the Company has amended or
supplemented the Prospectus to correct such misstatement or omission.
At such time as such public disclosure is otherwise made or the Company
determines that such disclosure is not necessary, in each case to
correct any misstatement of a material fact or to include any omitted
material fact, the Company agrees promptly to notify each Holder of
such determination and to furnish each Holder such numbers of copies of
the Prospectus, as amended or supplemented, as such Holder may
reasonably request;
(l) obtain CUSIP numbers, ISINs and common codes for all Exchange
Securities, or Registrable Securities, as the case may be, not later
than the effective date of a Registration Statement, and provide the
Trustee with printed certificates for the Exchange Securities or
Registrable Securities, as the case may be, in a form eligible for
deposit with the Depositary;
(m) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions (including those reasonably requested by the
Majority Holders of the Registrable Securities) 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 whether or not the registration is an underwritten registration, in
a manner that is reasonable and customary:
(i) make such representations and warranties to the Holders
of such Registrable Securities and the underwriters, if any, in
form, substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings as may be
reasonably requested by such Holders and underwriters;
(ii) 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, and the Holders of a majority in principal amount of the
Registrable Securities being sold) addressed to each selling
Holder and the underwriters, if any, covering the matters
customarily covered in opinions requested in sales of securities
or underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
15
(iii) obtain "cold comfort" letters and updates thereof from
the Company's independent certified public accountants addressed
to the underwriters, if any, and will use reasonable best efforts
to have such letters addressed to the selling Holders of
Registrable Securities, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort"
letters to underwriters in connection with similar underwritten
offerings;
(iv) enter into a securities sales agreement with the Holders
and an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose
of soliciting purchases of Registrable Securities, which agreement
shall be in form, substance and scope customary for similar
offerings; (v) if an underwriting agreement is entered into in the
case of an underwritten offering, cause the same to set forth
indemnification provisions and procedures substantially equivalent
to the indemnification provisions and procedures set forth in
Section 5 hereof with respect to the underwriters and all other
parties to be indemnified pursuant to Section 5 hereof; and
(v) deliver such documents and certificates as may be
reasonably requested by the underwriters or the Holders and as are
customarily delivered in similar offerings.
The above shall be done at (i) the effectiveness of such Registration
Statement (and, if appropriate, each post-effective amendment thereto) and (ii)
each closing under any underwriting or similar agreement as and to the extent
required thereunder. In the case of any underwritten offering, the Company shall
provide written notice to the Holders of all Registrable Securities of such
underwritten offering at least thirty days prior to the filing of a prospectus
supplement for such underwritten offering. Such notice shall (x) offer each such
Holder the right to participate in such underwritten offering, (y) specify a
date, which shall be no earlier than ten business days following the date of
such notice, by which such Holder must inform the Company of its intent to
participate in such underwritten offering and (z) include the instructions such
Holder must follow in order to participate in such underwritten offering;
(n) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Registrable
Securities and any underwriters participating in any disposition
pursuant to a Shelf Registration Statement and any U.S. counsel or
accountant retained by such Holders or underwriters, all financial and
other records, pertinent corporate documents and properties of the
Company reasonably requested by any such Persons, and cause the
respective officers, directors, employees, and any other agents of the
Company to supply all information reasonably requested by any such
representative, underwriter, special counsel or accountant in
connection with a Registration Statement; provided, however, that the
foregoing inspection and information gathering shall be coordinated on
behalf of the Initial Purchasers by Xxxxxxx Xxxxx Barney Inc. and on
behalf of the other parties by one counsel designated by the holders of
a majority of the Registrable
16
Securities, and provided further that any such records, documents,
properties and such information that is designated in writing by the
Company, in good faith, as confidential at the time of delivery of such
records, documents, properties or information shall be kept
confidential by any such representative, underwriter, counsel or
accountant and shall be used only in connection with such Shelf
Registration Statement, unless such information has become available
(not in violation of this Agreement) to the public generally or through
a third party without an accompanying obligation of confidentiality,
and except that such representative, underwriter, counsel or accountant
shall have no liability, and shall not be in breach of this provision,
if disclosure of such confidential information is made in connection
with a court proceeding or required bylaw, and the Company shall be
entitled to request that such representative, underwriter, counsel or
accountant sign a confidentiality agreement to the foregoing effect.
Each such person will be required to agree that information obtained by
it as a result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market transactions in the
securities of the Company unless and until such is made generally
available to the public through no fault or action of such person. Each
selling Holder of such Registrable Securities will be required to
further agree that it will, upon learning that disclosure of
confidential information is necessary, give notice to the Company to
allow the Company at its expense to undertake appropriate action to
prevent disclosure of the confidential information;
(o) (i) in the case of an Exchange Offer, a reasonable time prior
to the filing of any Exchange Offer Registration Statement, any
Prospectus forming a part thereof; any amendment to an Exchange Offer
Registration Statement or amendment or supplement to a Prospectus,
provide copies of such document to the Initial Purchasers, and make
such changes in any such document prior to the filing thereof as the
Initial Purchasers or their counsel may reasonably request; (ii) in the
case of a Shelf Registration, a reasonable time prior to filing any
Shelf Registration Statement, any Prospectus forming a part thereof;
any amendment to such Shelf Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the
Holders of Registrable Securities, to the Initial Purchasers, to
counsel on behalf of the Holders and to the underwriter or underwriters
of an underwritten offering of Registrable Securities, if any, and make
such changes in any such document prior to the filing thereof as
counsel to the Initial Purchasers, the Holders or any underwriter may
reasonably request; and (iii) cause the representatives of the Company
to be available for discussion of such Registration Statement and
Prospectus as shall be reasonably requested by the Holders of
Registrable Securities, the Initial Purchasers on behalf of such
Holders or any underwriter, and shall not at any time make any filing
of any such document of which such Holders, the Initial Purchasers on
behalf of such Holders, their counsel or any underwriter shall not have
previously been advised and furnished a copy or to which such Holders,
the Initial Purchasers on behalf of such Holders, their counsel or any
underwriter shall reasonably object within a reasonable time period;
(p) in the case of a Shelf Registration, use their reasonable best
efforts to cause the Registrable Securities to be rated with the
appropriate rating agencies, if so requested by
17
the Majority Holders or by the underwriter or underwriters of an
underwritten offering, unless the Registrable Securities are already so
rated;
(q) otherwise use their reasonable best efforts to comply with all
applicable rules and regulations of the SEC and make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering at least twelve months which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder; and
(r) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by
any underwriter and its counsel.
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Securities to furnish to the Company or their counsel such
information regarding such Holder and the proposed distribution by such Holder
of such Registrable Securities, as the Company may from time to time reasonably
request, and agree in writing to be bound by the Agreement, including the
indemnifica tion provisions.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event or the
discovery of any facts, each of the kind described in Sections 2(d)(i) and
3(e)(ii)-(vii) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder's
receipt of (i) the copies of the supplemented or amended Prospectus contemplated
by Section 3(k) hereof or (ii) written notice from the Company that the Shelf
Registration Statement is once again effective and that no supplement or
amendment is required. If so directed by the Company, such Holder will deliver
to the Company (at the Company's expense) all copies in its possession, other
than permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice.
If the Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to a Shelf Registration Statement as a result of
the happening of any event or the discovery of any facts, each of the kind
described in Sections 2(d)(i) and 3(e)(vi) hereof; the Company shall be deemed
to have used its reasonable best efforts to keep the Shelf Registration
Statement effective during such period of suspension; provided that (i) such
period of suspension shall not exceed the time periods provided in Section
2(d)(iii) hereof and (ii) the Company shall, if necessary, use its reasonable
best efforts to file and have declared effective (if an amendment) as soon as
practicable an amendment or supplement to the Shelf Registration Statement and
shall extend the period during which the Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days during the
period from and including the date of the giving of such notice to and including
the date when the Holders shall have received copies of the supplemented or
amended Prospectus necessary to resume such dispositions.
18
4. 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 Majority Holders of such Registrable
Securities included in such offering and shall be reasonably acceptable to the
Company.
No Holder of Registrable Securities 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 required under the terms of such
underwriting arrangements.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Initial
Purchaser, each Holder, including Participating Broker-Dealers, each
underwriter who participates in an offering of Registrable Securities,
their respective affiliates, and their respective directors, officers,
employees, agents, and each Person, if any, who controls any Initial
Purchaser or any Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred by the
Initial Purchaser, any Holder or any such controlling or affiliated
Person in connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or any amendment
thereof; pursuant to which Exchange Securities or Registrable
Securities were registered under the Securities Act, including all
documents incorporated therein by reference, 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, or caused by any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to
state therein a material fact necessary to make the statements therein
in light of the circumstances under which they were made not
misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to
any Initial Purchaser or any Holder furnished to the Company in writing
by such Initial Purchaser or by or relating to any Holder or
underwriter who participates in an offering of Registrable Securities,
in each case expressly for use therein; provided, however, that the
Company shall not be liable to any such Holder, Participating
Broker-Dealer or controlling person, with respect to any untrue
statement or alleged untrue statement or omission or alleged omission
in any preliminary prospectus to the extent that any such loss,
liability, claim, damage or expense of any Holder, Participating
Broker-Dealer or controlling person to whom there was not sent or
given, at or prior to the
19
written confirmation of such sale, a copy of the final Prospectus
as then amended or supplemented, if the Company had previously
furnished copies thereof to such Holder, Participating Broker-Dealer or
controlling person and the loss, liability, claim, damage or expense of
such Holder, Participating Broker-Dealer or controlling person results
from an untrue statement or omission of a material fact contained in
the preliminary prospectus that was corrected in the final Prospectus.
(b) Each Holder agrees, severally and not jointly, to indemnify
and hold harmless the Company, each Initial Purchaser, each underwriter
who participates in an offering of Registrable Securities, and the
other selling Holders, and each of their respective directors and
officers (including each director and officer of the Company who signed
the Registration Statement) and each Person, if any, who controls the
Company, any Initial Purchaser, any underwriter or any other selling
Holder within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any
legal or other expenses described in the indemnity contained in Section
5(a), as incurred), but only with reference to information relating to
such Holder furnished to the Company in writing by such Holder
expressly for use in any Registration Statement or any amendment
thereof or any Prospectus or any amendments or supplements thereto.
(c) 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 paragraph (a) or
paragraph (b) above, such Person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought
(the "indemnifying party") in writing (but the failure to so notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party except to the extent it is materially
prejudiced or harmed) 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. In the event the
indemnified parties retain their own counsel and the indemnifying party
is responsible for the fees and expenses of such counsel as a result of
clause (i) or (ii) of the previous sentence, then 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 the Initial
Purchasers and all Persons, if any, who control any Initial Purchaser
within the meaning of
20
either Section 15 of the Securities Act or Section 20 of the
Exchange Act, (b) the fees and expenses of more than one separate firm
(in addition to any local counsel) for the Company, its respective
directors, its respective officers who sign the Registration Statement
and all Persons, if any, who control the Company within the meaning of
either such Section and (c) 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 Holders 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 Initial Purchasers and such control Persons of the Initial
Purchasers, such firm shall be designated in writing by Xxxxxxx Xxxxx
Barney Inc. In the case of any such separate firm for the Holders and
such Persons who control Holders, such firm shall be designated in
writing by the Majority Holders. In all other cases, 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 is 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
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, which consent shall not be
unreasonably withheld, 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 (i) includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding and (ii) does not
include a statement as to an admission of fruit, culpability or failure
to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 5 is unavailable to an indemnified party
or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party under
such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect 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, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party or
parties on the one hand and the indemnified party or parties 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
21
to state a material fact relates to information supplied by such
indemnifying party or parties or such indemnified party or parties, and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
obligations of the Holders of Registrable Securities to contribute
pursuant to this Section 5 are several in proportion to the respective
number of Registrable Securities, and not joint.
(e) The Company, the Initial Purchasers, and each Holder of
Registrable Securities agree that it would not be just or equitable if
contribution pursuant to this Section 5 were determined by pro rata
allocation (even if the Initial Purchasers were treated as one entity
for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph
(d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in
paragraph (d) above 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 the provisions of
this Section 5, no Holder shall be required to indemnify or contribute
any amount in excess of the amount by which the total price at which
Registrable Securities were sold by such Holder exceeds the amount of
any damages that such Holder 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. For purposes of this Section 5, each
Person, if any, who controls an Initial Purchaser or Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Initial
Purchaser or Holder, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each Person, if
any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company. The remedies provided for in
this Section 5 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at
law or in equity.
The indemnity and contribution provisions contained in this Section 5
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 Initial Purchaser or any Holder, or any Person controlling any Initial
Purchaser or any Holder, or by or on behalf of the Company, its officers or
directors or any Person controlling the Company, (iii) acceptance of any of the
Exchange Securities and (iv) any sale of Registrable Securities pursuant to a
Shelf Registration Statement. Notwithstanding the foregoing, in the event the
Company enters into an underwriting agreement with one or more underwriters who
participate in an offering of Registrable Securities, the indemnification and
contribution provisions, if any, of such agreement shall, as to such
underwriters, supercede the indemnification and contribution provisions of this
Agreement.
22
6. Miscellaneous.
(a) Rule 144 and Rule l44A. For so long as the Company is subject
to the reporting requirements of Section 13 or 15 of the Exchange Act,
the Company covenants that it will file the reports required to be
filed by it under Section 13(a) or 15(d) of the Exchange Act and the
rules and regulations adopted by the SEC thereunder, that if it ceases
to be so required to file such reports, it will upon the request of any
Holder of Registrable Securities (i) make publicly available or cause
to be made publicly available such information as is necessary to
permit sales pursuant to Rule 144 under the Securities Act, (ii)
deliver or cause to be delivered such information to a prospective
purchaser as is necessary to permit sales pursuant to Rule 144A under
the Securities Act and it will take such further action as any Holder
of Registrable Securities may reasonably request, and (iii) take such
further action that is reasonable in the circumstances, in each case,
to the extent required from time to time to enable such Holder to sell
its Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (x) Rule 144
under the Securities Act, as such Rule may be amended from time to
time, (y) Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or (z) any similar rules or regulations
hereafter adopted by the SEC. Upon the written request of any Holder of
Registrable Securities, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into
nor will the Company on or after the date of this Agreement enter into
any agreement which is inconsistent with the rights granted to the
Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's other issued and
outstanding securities under any such agreements.
(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
material provisions hereof may not be given unless the Company has
obtained the written consent of the Majority Holders of the outstanding
Registrable Securities affected by such amendment, modification,
supplement, waiver or departure.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telecopier or any courier guaranteeing
overnight delivery (i) if to a Holder (other than an Initial
Purchaser), at the most current address set forth on the records of the
Registrar under the Indenture, (ii) if to an Initial Purchaser, at the
most current address given by such Initial Purchaser to the Company by
means of a notice given in accordance with the provisions of this
Section 6(d), which address initially is the address set forth in the
Purchase Agreement; and (iii) if to the Company, initially at its
respective addresses set forth in the Purchase
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Agreement and thereafter at such other addresses, notice of which
are given in accordance with the provisions of this Section 6(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if telecopied; and on the next business day if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees
of each of the parties, including, without limitation and without the
need for an express assignment, subsequent Holders; provided that
nothing herein shall be deemed to permit any assignment, transfer or
other disposition of Registrable Securities in violation of the terms
hereof or of the Purchase Agreement or the Indenture. If any transferee
of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Securities, such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement, including the restrictions
on resale set forth in this Agreement and, if applicable, the Purchase
Agreement, and such Person shall be entitled to receive the benefits
hereof.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company on
the one hand, and the Initial Purchasers, on the other hand, and shall
have the right to enforce such agreements directly to the extent it
deems such enforcement necessary or advisable to protect its rights or
the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning
hereof.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
regard to its conflict of laws provisions.
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(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforce able, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
[Signatures on next page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
INTERNATIONAL FLAVORS &
FRAGRANCES INC.
By:
--------------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written:
XXXXXXX XXXXX XXXXXX INC.
BANC ONE CAPITAL MARKETS, INC.
FIRST UNION SECURITIES
By: XXXXXXX XXXXX BARNEY INC.
By:
------------------------------------
Name:
Title:
For themselves and the other Initial Purchasers
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