Exhibit 4.2
EXECUTION COPY
CUMMINS CAPITAL TRUST I
(a Delaware Trust)
5,000,000
7% Convertible Cumulative Quarterly Income Preferred Securities (QUIPS(SM)*)
(Liquidation Amount $50 per Preferred Security)
guaranteed to the extent set forth herein by, and convertible into,
Common Stock of,
CUMMINS INC.
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REGISTRATION RIGHTS AGREEMENT
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June 18, 2001
Xxxxxxx, Xxxxx & Co.,
X.X. Xxxxxx Securities Inc.,
Xxxxxxx Xxxxx Xxxxxx Inc.,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Cummins Capital Trust I, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), and Cummins Inc., an Indiana
corporation, as depositor of the Trust and as guarantor (the "Company"), propose
that the Trust issue and sell to the Purchasers (as defined herein) upon the
terms set forth in the Purchase Agreement (as defined herein) its 7% Convertible
Quarterly Income Preferred Securities (liquidation amount $50 per preferred
security) (the "Preferred Securities") of the Trust. The Preferred Securities
are guaranteed on a subordinated basis by the Company as to the payment of
distributions, and as to payments on liquidation or redemption, to the extent
set forth in a guarantee agreement (the "Guarantee") between the Company and BNY
Midwest Trust Company, as trustee, and may be (A) converted into common stock,
$2.50 par value per share ("Common Stock"), of the Company or (B) exchanged
under certain circumstances into the 7% Junior Subordinated Convertible
Debentures Due June 15, 2031 of the Company (the "Debentures") held by the
Trust, which are convertible into Common Stock. The Preferred Securities, the
Debentures, the Guarantee and the Common Stock issuable upon conversion of the
Preferred Securities or the Debentures, or both, are referred to collectively as
the "Securities". As an inducement to the Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the
Purchasers thereunder, the Company and the Trust, jointly and severally, agree
with the Purchasers for the benefit of Holders (as defined herein) from time to
time of the Registrable Securities (as defined herein) as follows:
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* QUIPS is a servicemark of Xxxxxxx, Xxxxx & Co.
1. DEFINITIONS.
(a) Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Purchase Agreement. As used in this Agreement,
the following defined terms shall have the following meanings:
"ACT" or "SECURITIES ACT" means the United States Securities Act of
1933, as amended.
"AFFILIATE" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"CLOSING DATE" means the First Time of Delivery as defined in the
Purchase Agreement.
"COMMISSION" means the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"DTC" means The Depository Trust Company.
"EFFECTIVENESS PERIOD" has the meaning assigned thereto in Section
2(b)(i) hereof.
"EFFECTIVE TIME" means the date on which the Commission declares the
Shelf Registration Statement effective or on which the Shelf Registration
Statement otherwise becomes effective.
"ELECTING HOLDER" has the meaning assigned thereto in Section 3(a)(3)
hereof.
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934,
as amended.
"HOLDER" means, any person that is the record owner of Registrable
Securities (and includes any person that has a beneficial interest in any
Registrable Security in book-entry form).
"INDENTURE" means the Indenture, dated as of June 18, 2001, between the
Company and BNY Midwest Trust Company, as amended and supplemented from time to
time in accordance with its terms.
"MANAGING UNDERWRITERS" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering,
if any, conducted pursuant to Section 6 hereof.
"NASD RULES" means the Rules of the National Association of Securities
Dealers, Inc., as amended from time to time.
"NOTICE AND QUESTIONNAIRE" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
The term "PERSON" means an individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
"PROSPECTUS" means the prospectus (including, without limitation, any
preliminary prospectus, any final prospectus and any prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act) included in the
Shelf Registration Statement, as amended or supplemented by any prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by the Shelf Registration Statement and by all
other amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by the Company under the Exchange Act and incorporated
by reference therein.
"PURCHASE AGREEMENT" means the purchase agreement, dated as of June 12,
2001 between the Purchasers and the Company relating to the Securities.
"PURCHASERS" means the Purchasers named in Schedule I to the Purchase
Agreement.
"REGISTRABLE SECURITIES" means all or any portion of the Securities
issued from time to time; PROVIDED, HOWEVER, that a security ceases to be a
Registrable Security when it is no longer a Restricted Security.
"RESTRICTED SECURITY" means any Security except any such Security which
(i) has been effectively registered under the Securities Act and sold in a
manner contemplated by the Shelf Registration Statement, (ii) has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or is transferable pursuant to paragraph (k) of
such Rule 144 (or any successor provision thereto), (iii) has been sold in
compliance with Regulation S under the Securities Act (or any successor thereto)
and does not constitute the unsold allotment of a distributor within the meaning
of Regulation S under the Securities Act, or (iv) has otherwise been transferred
and a new Security or share of Common Stock not subject to transfer restrictions
under the Securities Act has been delivered by or on behalf of the Company in
accordance with the terms of the Trust Agreement or the Indenture, as the case
may be.
"RULES AND REGULATIONS" means the published rules and regulations of
the Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
"SHELF REGISTRATION" means a registration effected pursuant to Section
2 hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement
filed under the Securities Act providing for the registration of, and the sale
on a continuous or delayed basis by the Holders of, all of the Registrable
Securities pursuant to Rule 415 under the Securities Act and/or any similar rule
that may be adopted by the Commission, filed by the Company pursuant to the
provisions of Section 2 of this Agreement, including the Prospectus contained
therein, any
amendments and supplements to such registration statement, including
post-effective amendments, and all exhibits and all material incorporated by
reference in such registration statement.
"TRUST AGREEMENT" means the Amended and Restated Trust Agreement, dated
as of June 18, 2001, among Cummins Inc., as Depositor, BNY Midwest Trust
Company, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee and the Administrative Trustees named therein, relating, among other
things, to the Preferred Securities, as amended and supplemented from time to
time in accordance with its terms.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
as the same shall be amended from time to time.
The term "UNDERWRITER" means any underwriter of Registrable Securities
in connection with an offering thereof under a Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a percentage of
the "principal amount" of Registrable Securities or to a percentage of
Registrable Securities, the Preferred Securities and the Debentures issuable
upon exchange of the Preferred Securities will be treated as the same class of
Securities, and the percentage of the "principal amount" of the Registrable
Securities will be the percentage of the principal amount of any Debentures
issued upon exchange of the Preferred Securities and the liquidation amount of
Preferred Securities outstanding, taken as a whole. In addition, the Common
Stock shall be treated as representing the liquidation amount of Preferred
Securities or the principal amount of Debentures, which was surrendered for
conversion or exchange in order to receive such number of shares of Common
Stock.
2. SHELF REGISTRATION.
(a) The Company and the Trust shall, no later than 90 calendar days
following the Closing Date, file with the Commission a Shelf Registration
Statement relating to the offer and sale of the Registrable Securities by the
Holders from time to time in accordance with the methods of distribution elected
by such Holders and set forth in such Shelf Registration Statement and,
thereafter, shall use its best efforts to cause such Shelf Registration
Statement to be declared effective under the Act no later than 180 calendar days
following the Closing Date; PROVIDED, HOWEVER, that the Company may, upon
written notice to all Holders, postpone having the Shelf Registration Statement
declared effective for a reasonable period not to exceed 90 days if the Company
possesses material non-public information, the disclosure of which would have a
material adverse effect on the Company and its subsidiaries taken as a whole;
PROVIDED FURTHER, that no Holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement or to use the Prospectus
forming a part thereof for resales of Registrable Securities unless such Holder
is an Electing Holder.
(b) The Company and the Trust shall each use its best efforts:
(i) To keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus forming part thereof to be
usable by Holders until the earliest of (1) the sale of all Registrable
Securities registered under the Shelf Registration Statement; (2) the
expiration of the period referred to in Rule 144(k) of the Act or any
successor provision thereto with respect to all Registrable Securities
held by Persons that are not Affiliates of the Company; and (3) two
years from the Effective Time (such period being referred to herein as
the "Effectiveness Period");
(ii) After the Effective Time of the Shelf Registration
Statement, promptly upon the request of any Holder of Registrable
Securities that is not then an Electing Holder, to take any action
reasonably necessary to enable such Holder to use the Prospectus
forming a part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to identify such
Holder as a selling securityholder in the Shelf Registration Statement;
PROVIDED, HOWEVER, that nothing in this subparagraph shall relieve such
Holder of the obligation to return a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(a)(2) hereof;
and
(iii) If at any time the Preferred Securities or the
Debentures are convertible into securities other than Common Stock, the
Company and the Trust shall, or shall cause any successor under the
Trust Agreement or the Indenture, as the case may be, to, cause such
securities to be included in the Shelf Registration Statement no later
than the date on which the Securities may then be convertible into such
securities.
The Company and the Trust shall each be deemed not to have used its best efforts
to keep the Shelf Registration Statement effective during the requisite period
if either the Trust or the Company voluntarily takes any action that would
result in Holders of Registrable Securities covered thereby not being able to
offer and sell any of such Registrable Securities during that period, unless
such action is permitted pursuant to subparagraph (c) below or is required by
applicable law and the Company thereafter promptly complies with the
requirements of paragraph 3(j) below.
(c) The Company may suspend the use of the Prospectus for a period not
to exceed 30 days in any 90-day period or an aggregate of 90 days in any
12-month period if the Board of Directors of the Company shall have determined
in good faith that because of valid business reasons (not including avoidance of
the Company's obligations hereunder), including the acquisition or divestiture
of assets, pending corporate developments and similar events, it is in the best
interests of the Company to suspend such use, and prior to suspending such use
the Company provides the Holders with written notice of such suspension, which
notice need not specify the nature of the event giving rise to such suspension.
Each suspension period, with respect to each Holder, shall begin on the date
following the date written notice of such suspension is received by such Holder
and shall end on the earlier of (i) the date such Holder receives from the
Company a written notice that such suspension has been terminated and (ii) the
31st calendar day from the date on which the written notice of suspension is
received by such Holder.
3. REGISTRATION PROCEDURES. In connection with the Shelf Registration
Statement, the following provisions shall apply:
(a) (i) Not less than 30 calendar days prior to the Effective Time of
the Shelf Registration Statement, the Company and the Trust shall mail the
Notice and Questionnaire to the Holders of Registrable Securities. Any Person
that acquires any Registrable Securities from an Electing Holder in compliance
with the applicable provisions of the Securities will be entitled to have such
Registrable Securities included in the Shelf Registration Statement so long as
such transferee provides the Company with an updated Notice and Questionnaire
prior to the Questionnaire Deadline (as defined below). No Holder shall be
entitled to be named as a selling securityholder in the Shelf Registration
Statement as of the Effective Time, and no Holder shall be entitled to use the
Prospectus forming a part thereof for resales of Registrable Securities at any
time, unless such Holder has returned a completed and signed Notice and
Questionnaire to the Company and the Trust by the deadline for response set
forth therein (the "Questionnaire Deadline"); PROVIDED, HOWEVER, that Holders of
Registrable Securities shall have at least 28 calendar days from the date on
which the Notice and Questionnaire is first mailed to such Holders to return a
completed and signed Notice and Questionnaire to the Company and the Trust. If
such completed Notice and Questionnaire is received by the Company at least 10
days before the Effective Time, such Holder shall be entitled to have its
Registrable Securities included in the Shelf Registration Statement at the
Effective Time. If the Company receives such completed Notice and Questionnaire
after the 10th day before the Effective Time, the Registrable Securities covered
by the Notice and Questionnaire will be included in the Shelf Registration
Statement as promptly as reasonably practicable after receipt of such Notice and
Questionnaire.
(ii) After the Effective Time of the Shelf Registration
Statement, the Company and the Trust shall, upon the request of any
Holder of Registrable Securities that is not then an Electing Holder,
promptly send a Notice and Questionnaire to such Holder. The Company
shall not be required to take any action to name such Holder as a
selling securityholder in the Shelf Registration Statement or to enable
such Holder to use the Prospectus forming a part thereof for resales of
Registrable Securities until such Holder has returned a completed and
signed Notice and Questionnaire to the Company
(iii) The term "Electing Holder" shall mean any Holder of
Registrable Securities that has returned a completed and signed Notice
and Questionnaire to the Company and the Trust in accordance with
Section 3(a)(i) or 3(a)(ii) hereof.
(b) The Company and the Trust shall furnish to each Electing Holder,
prior to the Effective Time, a copy of the Shelf Registration Statement
initially filed with the Commission, and shall furnish to such Holders, prior to
the filing thereof with the Commission, copies of each amendment thereto and
each amendment or supplement, if any, to the Prospectus included therein, and
shall use its best efforts to reflect in each such document, at the Effective
Time or when so filed with the Commission, as the case may be, such comments as
such Holders and their respective counsel reasonably may propose.
(c) The Company and the Trust shall promptly take such action (except
during a period in which the use of the Prospectus has been suspended by the
Company pursuant to Section 2(c)) as may be necessary so that (i) each of the
Shelf Registration Statement and any amendment thereto and the Prospectus
forming part thereof and any amendment or supplement thereto (and each report or
other document incorporated therein by reference in each case) complies in all
material respects with the Securities Act and the Exchange Act and the
respective rules and regulations thereunder; (ii) each of the Shelf Registration
Statement and any amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
and (iii) each of the Prospectus forming part of the Shelf Registration
Statement, and any amendment or supplement to such Prospectus, does not at any
time during the Effectiveness Period include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(d) The Company shall promptly advise each Electing Holder, and shall
confirm such advice in writing if so requested by any such Holder:
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when a Shelf
Registration Statement or any post-effective amendment thereto has
become effective, in each case making a public announcement thereof by
release made to Dow Xxxxx & Company, Inc. or Bloomberg Business News;
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for such purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included in the Shelf Registration Statement for sale in any
jurisdiction or the initiation of any proceeding for such purpose; and
(v) of the happening of any event or the existence of any
state of facts that requires the making of any changes in the Shelf
Registration Statement or the Prospectus included therein so that, as
of such date, such Shelf Registration Statement and Prospectus do not
contain an untrue statement of a material fact and do not omit to state
a material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading (which advice
shall be accompanied by an instruction to such Holders to suspend the
use of the Prospectus until the requisite changes have been made).
(e) The Company and the Trust shall each use its best efforts to
prevent the issuance, and if issued to obtain the withdrawal, of any order
suspending the effectiveness of the Shelf Registration Statement at the earliest
possible time.
(f) The Company and the Trust shall furnish to each Electing Holder
(via regular mail or, if such Electing Holder specifies an e-mail address in its
Notice and Questionnaire and the Company so elects to deliver the documents
specified in this subsection, via e-mail), without charge, at least one copy of
the Shelf Registration Statement and all post-effective amendments thereto,
including financial statements and schedules, and, if such Holder so requests in
writing, all reports, other documents and exhibits that are filed with or
incorporated by reference in the Shelf Registration Statement.
(g) The Company and the Trust shall, during the Effectiveness Period,
deliver to each Electing Holder (via regular mail or, if such Electing Holder
specifies an e-mail address in its Notice and Questionnaire and the Company so
elects to deliver the documents specified in this subsection, via e-mail),
without charge, as many copies of the Prospectus (including each preliminary
Prospectus) included in the Shelf Registration Statement and any amendment or
supplement thereto as such Electing Holder may reasonably request; and the
Company and the Trust each consents (except during the continuance of any event
described in Section 3(d)(v) above) to the use of the Prospectus and any
amendment or supplement thereto by each of the Electing Holders in connection
with the offering and sale of the Registrable Securities covered by the
Prospectus and any amendment or supplement thereto during the Effectiveness
Period.
(h) Prior to any offering of Registrable Securities pursuant to the
Shelf Registration Statement, the Company and the Trust shall use their best
efforts (i) register or qualify or cooperate with the Electing Holders and their
respective counsel in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or "blue sky"
laws of such jurisdictions within the United States as any Electing Holder may
reasonably request, (ii) keep such registrations or qualifications in effect and
comply with such laws so as to permit the continuance of offers and sales in
such jurisdictions for so long as may be necessary to enable any Electing Holder
or underwriter, if any, to complete its distribution of Registrable Securities
pursuant to the Shelf Registration Statement, and (iii) take any and all other
actions necessary or advisable to enable the disposition in such jurisdictions
of such Registrable Securities; PROVIDED, HOWEVER, that in no event shall the
Company or the Trust be obligated to (A) qualify as a foreign corporation or as
a dealer in securities in any jurisdiction where it would not otherwise be
required to so qualify but for this Section 3(h), (B) take any action which
would subject it to taxation in any jurisdiction where it is not then so
subject, or (C) file any general consent to service of process in any
jurisdiction where it is not as of the date hereof so subject.
(i) Unless any Registrable Securities shall be in book-entry only form,
the Company and the Trust shall cooperate with the Electing Holders to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold pursuant to the Shelf Registration Statement,
which certificates, if so required by any securities exchange upon which any
Registrable Securities are listed, shall be penned, lithographed or engraved, or
produced by
any combination of such methods, on steel engraved borders, and which
certificates shall be free of any restrictive legends and in such permitted
denominations and registered in such names as Electing Holders may request in
connection with the sale of Registrable Securities pursuant to the Shelf
Registration Statement.
(j) Upon the occurrence of any fact or event contemplated by paragraph
3(d)(v) above, the Company and the Trust shall promptly (or before the
expiration of the suspension period if the use of the Prospectus has been
suspended by the Company pursuant to Section 2(c)) prepare a post-effective
amendment to any Shelf Registration Statement or an amendment or supplement to
the related Prospectus or file any other required document so that, as
thereafter delivered to purchasers of the Registrable Securities included
therein, the Prospectus will not include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading. If
the Company or the Trust notifies the Electing Holders of the occurrence of any
event contemplated by paragraph 3(d)(v) above, the Electing Holder shall suspend
the use of the Prospectus until the requisite changes to the Prospectus have
been made.
(k) Not later than the Effective Time of the Shelf Registration
Statement, the Company and the Trust shall each provide a CUSIP number for the
Preferred Securities registered under such Shelf Registration Statement; in the
event of and at the time of any distribution of the Debentures to Holders, the
Company and the Trust shall provide a CUSIP number for the Debentures and
provide the applicable trustee with certificates for such Registrable
Securities, in a form eligible for deposit with DTC.
(l) The Company and the Trust shall each use its best efforts to make
generally available to its securityholders as soon as practicable, but in any
event not later than eighteen months after (i) the effective date (as defined in
Rule 158(c) under the Securities Act) of the Shelf Registration Statement, (ii)
the effective date of each post-effective amendment to the Shelf Registration
Statement, and (iii) the date of each filing by the Company with the Commission
of an Annual Report on Form 10-K that is incorporated by reference in the Shelf
Registration Statement, an earnings statement of the Company and its
subsidiaries complying with Section 11(a) of the Securities Act and the rules
and regulations of the Commission thereunder (including, at the option of the
Company, Rule 158).
(m) Not later than the Effective Time of the Shelf Registration
Statement, the Company and the Trust shall cause the Indenture, the Trust
Agreement and the Guarantee to be qualified under the Trust Indenture Act; in
connection with such qualification, the Company and the Trust shall cooperate
with the Trustee under the Indenture, the Trust Agreement and the Guarantee and
the Holders (as defined in the Indenture) to effect such changes to the
Indenture, the Trust Agreement and the Guarantee as may be required for such
documents to be so qualified in accordance with the terms of the Trust Indenture
Act; and the Company and the Trust shall execute, and shall use all reasonable
efforts to cause the Trustee to execute, all documents that may be required to
effect such changes and all other forms and documents required to be filed with
the Commission to enable such documents to be so qualified in a timely manner.
In the event that any such amendment or modification referred to in this Section
3(m) involves the
appointment of a new trustee under the Indenture, the Trust Agreement or the
Guarantee, the Company or the Trust shall appoint a new trustee thereunder
pursuant to the applicable provisions of each such document.
(n) In the event of an underwritten offering conducted pursuant to
Section 6 hereof, the Company and the Trust shall, if requested, promptly
include or incorporate in a Prospectus supplement or post-effective amendment to
the Shelf Registration Statement such information as the Managing Underwriters
reasonably agree should be included therein and to which the Company does not
reasonably object and shall make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after it is
notified of the matters to be included or incorporated in such Prospectus
supplement or post-effective amendment.
(o) The Company and the Trust shall enter into such customary
agreements (including an underwriting agreement in customary form in the event
of an underwritten offering conducted pursuant to Section 6 hereof) and take all
other appropriate action in order to expedite and facilitate the registration
and disposition of the Registrable Securities, and in connection therewith, if
an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures substantially identical to those set
forth in Section 5 hereof with respect to all parties to be indemnified pursuant
to Section 5 hereof.
(p) The Company and the Trust shall:
(i) (A) make reasonably available for inspection by Electing
Holders, any underwriter participating in any disposition pursuant to
the Shelf Registration Statement, and any attorney, accountant or other
agent retained by such Holders or any such underwriter all relevant
financial and other records, pertinent corporate documents and
properties of the Company, its subsidiaries and the Trust, and (B)
cause the officers, directors, employees and agents of the Company and
the trustees of the Trust to supply all information reasonably
requested by such Holders or any such underwriter, attorney, accountant
or agent in connection with the Shelf Registration Statement, in each
case, as is customary for similar due diligence examinations; PROVIDED,
HOWEVER, that all records, information and documents that are
designated in writing by the Company and the Trust, in good faith, as
confidential shall be kept confidential by such Holders and any such
underwriter, attorney, accountant or agent, unless such disclosure is
made in connection with a court proceeding or required by law, or such
records, information or documents become available to the public
generally or through a third party without an accompanying obligation
of confidentiality; and PROVIDED FURTHER that, if, in the Company's
reasonable judgment, the foregoing inspection and information gathering
would otherwise disrupt the Company's conduct of its business, such
inspection and information gathering shall be coordinated on behalf of
the Electing Holders and the other parties entitled thereto by one
counsel designated by and on behalf of Electing Holders and other
parties;
(ii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, make such representations and warranties
to the Holders participating in
such underwritten offering and to the Managing Underwriters, in form,
substance and scope as are customarily made by the Company and the
Trust to underwriters in primary underwritten offerings of equity and
convertible debt securities and covering matters including, but not
limited to, those set forth in the Purchase Agreement;
(iii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain opinions of counsel to the Company
and the Trust (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing
Underwriters) addressed to each Holder participating in such
underwritten offering and the underwriters, covering such matters as
are customarily covered in opinions requested in primary underwritten
offerings of equity and convertible debt securities and such other
matters as may be reasonably requested by such Holders and underwriters
(it being agreed that the matters to be covered by such opinions shall
include, without limitation, as of the date of the opinion and as of
the Effective Time of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, the absence from
the Shelf Registration Statement and the Prospectus, including the
documents incorporated by reference therein, of an untrue statement of
a material fact or the omission of a material fact required to be
stated therein or necessary to make the statements therein not
misleading);
(iv) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain "cold comfort" letters and updates
thereof from the independent public accountants of the Company and the
Trust (and, if necessary, from the independent public accountants of
any subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are, or are
required to be, included in the Shelf Registration Statement),
addressed to each Holder participating in such underwritten offering
(if such Holder has provided such letter, representations or
documentation, if any, required for such cold comfort letter to be so
addressed) and the underwriters, in customary form and covering matters
of the type customarily covered in "cold comfort" letters in connection
with primary underwritten offerings;
(v) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, deliver such documents and certificates
as may be reasonably requested by any Holders participating in such
underwritten offering and the Managing Underwriters, if any, including,
without limitation, certificates to evidence compliance with Section
3(j) hereof and with any conditions contained in the underwriting
agreement or other agreements entered into by the Company and the
Trust.
(q) Each of the Company and the Trust shall have caused the Common
Stock issuable upon conversion of the Preferred Securities or the Debentures, or
both, to be listed on the New York Stock Exchange or other stock exchange or
trading system on which the Common Stock primarily trades prior to the Effective
Time of the Shelf Registration Statement hereunder.
(r) In the event that any broker-dealer registered under the Exchange
Act shall be an "affiliate" (as defined in Rule 2720(b)(1) of the NASD Rules (or
any successor provision
thereto)) of the Company or the Trust, or has a "conflict of interest" (as
defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision
thereto)) and such broker-dealer shall underwrite, participate as a member of an
underwriting syndicate or selling group or assist in the distribution of any
Registrable Securities covered by the Shelf Registration Statement, whether as a
Holder of such Registrable Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, the Company and
the Trust shall assist such broker-dealer in complying with the requirements of
the NASD Rules, including, without limitation, by (A) engaging a "qualified
independent underwriter" (as defined in Rule 2720(b)(15) of the NASD Rules (or
any successor provision thereto)) if required to do so by the NASD Rules, such
"qualified independent underwriter" to participate in the preparation of the
registration statement relating to such Registrable Securities, to exercise
usual standards of due diligence in respect thereto and to recommend the public
offering price of such Registrable Securities, (B) indemnifying the qualified
independent underwriter if one is engaged pursuant to clause (A), to the extent
of the indemnification of underwriters provided in Section 5 hereof, and (C)
providing such information to such broker-dealer as may be required in order for
such broker-dealer to comply with the requirements of the NASD Rules.
(s) The Company and the Trust shall each use its best efforts to take
all other steps necessary to effect the registration, offering and sale of the
Registrable Securities covered by the Shelf Registration Statement contemplated
hereby.
4. REGISTRATION EXPENSES. Except as otherwise provided in Section 3,
the Company and the Trust shall each bear all fees and expenses incurred in
connection with the performance of its obligations under Sections 2 and 3 hereof
and shall each bear or reimburse the Electing Holders for the reasonable fees
and disbursements of a single counsel selected by a plurality of all Electing
Holders who own an aggregate of not less than 25% of the Registrable Securities
covered by the Shelf Registration Statement to act as counsel therefore in
connection therewith. Each Electing Holder shall pay all underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or disposition
of such Electing Holder's Registrable Securities pursuant to the Shelf
Registration Statement.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY AND THE TRUST. Upon the registration
of the Registrable Securities pursuant to Section 2 hereof, the Company and the
Trust, jointly and severally, shall indemnify and hold harmless each Electing
Holder and each underwriter, selling agent or other securities professional, if
any, that facilitates the disposition of Registrable Securities, and each of
their respective officers and directors, or trustees, as the case may be, and
each person who controls such Electing Holder, underwriter, selling agent or
other securities professional within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (each such person being sometimes referred
to as an "Indemnified Person") against any losses, claims, damages or
liabilities, joint or several, to which such Indemnified Person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Shelf Registration
Statement under which such Registrable Securities are to be registered under the
Securities Act, or any Prospectus contained therein or furnished by the Company
to any Indemnified Person, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Company hereby agrees to reimburse such
Indemnified Person for any legal or other expenses reasonably incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim as such expenses are incurred; PROVIDED, HOWEVER, that neither the
Company nor the Trust shall be liable (i) to any such Indemnified Person in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such Shelf Registration Statement or
Prospectus, or amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company or the Trust by such Indemnified
Person expressly for use therein or (ii) to any Holder if use of the Prospectus
has been suspended pursuant to Section 2(c), in any such case to the extent that
any such loss, claim, damage or liability arises from the use by such Holder of
the Prospectus during a period beginning on the date ten days following the date
written notice of such suspension is received by such Holder and ending upon
termination of such suspension period.
(b) INDEMNIFICATION BY THE HOLDERS AND ANY AGENTS AND UNDERWRITERS.
Each Electing Holder agrees, as a consequence of the inclusion of any of such
Holder's Registrable Securities in such Shelf Registration Statement, and each
underwriter, selling agent or other securities professional, if any, that
facilitates the disposition of Registrable Securities shall agree, as a
consequence of facilitating such disposition of Registrable Securities,
severally and not jointly, to (i) indemnify and hold harmless the Company, the
Trust, the directors and officers of the Company or trustees of the Trust who
sign any Shelf Registration Statement and each person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act, against any losses, claims, damages or liabilities to
which the Company and the Trust or such other persons may become subject, under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
such Shelf Registration Statement or Prospectus, or any amendment or supplement,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company or the Trust by such Holder, underwriter,
selling agent or other securities professional expressly for use therein, and
(ii) reimburse the Company and the Trust for any legal or other expenses
reasonably incurred by the Company or the Trust, as the case may be, in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party under this
Section 5, notify such indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise than
under this Section 5. In case any such action shall be brought against any
indemnified party and it shall notify an indemnifying party of the commencement
thereof, such indemnifying party shall be entitled to participate therein and,
to the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, such indemnifying party shall not be liable to such
indemnified party under this Section 5 for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) CONTRIBUTION. If the indemnification provided for in this Section 5
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 5(d) were determined by
pro rata allocation (even if the Electing Holders or any underwriters, selling
agents or other securities professionals or all of them were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 5(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Electing
Holders and any underwriters, selling agents or other securities professionals
in this Section 5(d) to contribute shall be several in proportion to the
percentage of principal amount of Registrable Securities registered or
underwritten, as the case may be, by them and not joint.
(e) Notwithstanding any other provision of this Section 5, in no event
will any (i) Electing Holder be required to undertake liability to any person
under this Section 5 for any amounts in excess of the dollar amount of the
proceeds to be received by such Holder from the sale of such Holder's
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Shelf Registration Statement under which
such Registrable Securities are to be registered under the Securities Act and
(ii) underwriter, selling agent or other securities professional be required to
undertake liability to any person hereunder for any amounts in excess of the
discount, commission or other compensation payable to such underwriter, selling
agent or other securities professional with respect to the Registrable
Securities underwritten by it and distributed to the public.
(f) The obligations of the Company and the Trust under this Section 5
shall be joint and several and shall be in addition to any liability which the
Company and the Trust may otherwise have to any Indemnified Person and the
obligations of any Indemnified Person under this Section 5 shall be in addition
to any liability which such Indemnified Person may otherwise have to the Company
and the Trust. The remedies provided in this Section 5 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to an
indemnified party at law or in equity.
6. UNDERWRITTEN OFFERING. Any Holder of Registrable Securities who
desires to do so may sell Registrable Securities (in whole or in part) in an
underwritten offering; PROVIDED that (i) the Electing Holders of at least a
majority in aggregate principal amount of the Registrable Securities then
covered by the Shelf Registration Statement shall request such an offering and
(ii) at least such aggregate principal amount of such Registrable Securities
shall be included in such offering; and PROVIDED FURTHER that the Company and
the Trust shall not be obligated to cooperate with more than one underwritten
offering during the Effectiveness Period. Upon receipt of such a request, the
Company and the Trust shall provide all Holders of Registrable Securities
written notice of the request, which notice shall inform such Holders that they
have the opportunity to participate in the offering. In any such underwritten
offering, the investment banker or bankers and manager or managers that will
administer the offering will be selected by, and the underwriting arrangements
with respect thereto (including the size of the offering) will be approved by,
the holders of a majority of the Registrable Securities to be included in such
offering; PROVIDED, HOWEVER, that such investment bankers and managers and
underwriting arrangements must be reasonably satisfactory to the Company and the
Trust. No Holder may participate in any underwritten offering contemplated
hereby unless (a) such Holder agrees to sell such Holder's Registrable
Securities to be included in the underwritten offering in accordance with any
approved underwriting arrangements, (b) such Holder completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
approved underwriting arrangements, and (c) if such Holder is not then an
Electing Holder, such Holder returns a completed and signed Notice and
Questionnaire to the Company and the Trust in accordance
with Section 3(a)(2) hereof within a reasonable amount of time before such
underwritten offering. The Holders participating in any underwritten offering
shall be responsible for any underwriting discounts and commissions and fees
and, subject to Section 4 hereof, expenses of their own counsel. The Company and
the Trust shall pay all expenses customarily borne by issuers, including but not
limited to filing fees, the fees and disbursements of its counsel and
independent public accountants and any printing expenses incurred in connection
with such underwritten offering. Notwithstanding the foregoing or the provisions
of Section 3(n) hereof, upon receipt of a request from the Managing Underwriter
or a representative of holders of a majority of the Registrable Securities to be
included in an underwritten offering to prepare and file an amendment or
supplement to the Shelf Registration Statement and Prospectus in connection with
an underwritten offering, the Company and the Trust may delay the filing of any
such amendment or supplement for up to 90 days if the Board of Directors of the
Company shall have determined in good faith that the Company has a bona fide
business reason for such delay.
7. LIQUIDATED DAMAGES.
(a) Pursuant to Section 2(a) hereof, the Company and the Trust may,
upon written notice to all the Holders, postpone having the Shelf Registration
Statement declared effective for a reasonable period not to exceed 90 days if
the Company possesses material non-public information, the disclosure of which
would have a material adverse effect on the Company and its subsidiaries taken
as a whole. Notwithstanding any such postponement, if (i) on or prior to the
90th day following the Closing Date, a Shelf Registration Statement has not been
filed with the Commission or (ii) on or prior to the 180th day following the
Closing Date, such Shelf Registration Statement is not declared effective by the
Commission (each, a "Registration Default"), the Company and the Trust shall be
required to pay liquidated damages ("Liquidated Damages"), from and including
the day following such Registration Default until such Shelf Registration
Statement is either so filed or so filed and subsequently declared effective, as
applicable, at a rate per annum equal to an additional one-quarter of one
percent (0.25%) of the principal amount of Registrable Securities, to and
including the 90th day following such Registration Default and one-half of one
percent (0.50%) thereof from and after the 91st day following such Registration
Default.
(b) In the event that the Shelf Registration Statement ceases to be
effective (or the Holders of Registrable Securities are otherwise prevented or
restricted by the Company or the Trust from effecting sales pursuant thereto)
(an "Effective Failure") for more than 30 days, whether or not consecutive, in
any 90-day period, or 90 days, whether or not consecutive, during any 12-month
period, then the Company and the Trust shall pay Liquidated Damages at a rate
per annum equal to an additional one-half of one percent (0.50%) from the 31st
day of the applicable 90-day period or the 91st day of the applicable 12-month
period, as the case may be, that such Shelf Registration Statement ceases to be
effective (or the Holders of Registrable Securities are otherwise prevented or
restricted by the Company and the Trust from effecting sales pursuant thereto)
until the earlier of (i) the time the Shelf Registration Statement again becomes
effective or the Holders of Registrable Securities are again able to make sales
under the Shelf Registration Statement or (2) the time the Effectiveness Period
expires. For the purpose of determining an Effective Failure, days on which the
Company and the Trust have been obligated
to pay Liquidated Damages in accordance with the foregoing in respect of a prior
Effective Failure within the applicable 90-day or 12-month period, as the case
may be, shall not be included.
(c) Any amounts to be paid as Liquidated Damages pursuant to paragraphs
(a) or (b) of this Section 7 shall be paid quarterly in arrears, with the first
quarterly payment due on the first Interest Payment Date (as defined in the
Indenture), as applicable, following the date of such Registration Default. Such
Liquidated Damages will accrue (1) in respect of the Securities at the rates set
forth in paragraphs (a) or (b) of this Section 7, as applicable, on the
principal amount of the Preferred Securities or the Debentures and (2) in
respect of the Common Stock issued upon conversion of the Preferred Securities
or the Debentures, or both, at the rates set forth in paragraphs (a) or (b) of
this Section 7, as applicable, applied to the Conversion Price (as defined in
the Indenture) at that time. The amount of Liquidated Damages due pursuant to
paragraphs (a) or (b) of this Section 7 shall be determined by multiplying the
applicable rate by the principal amount of the Preferred Securities or the
Debentures or by the Conversion Price of the Common Stock, as the case may be,
and multiplying that amount by a fraction, the numerator of which is the number
of days such rate was applicable during such period (determined on the basis of
a 360-day year comprised of twelve 30-day months) and the denominator of which
is 360.
(d) Except as provided in Section 8(b) hereof, the Liquidated Damages
as set forth in this Section 7 shall be the exclusive monetary remedy available
to the Holders of Registrable Securities for such Registration Default or
Effective Failure. In no event shall the Company or the Trust be required to pay
Liquidated Damages in excess of the applicable maximum amount of one-half of one
percent (0.50%) set forth above, regardless of whether one or multiple
Registration Defaults exist.
8. MISCELLANEOUS.
(a) OTHER REGISTRATION RIGHTS. The Company may grant registration
rights that would permit any Person that is a third party the right to
piggy-back on any Shelf Registration Statement, PROVIDED that if the Managing
Underwriter of any underwritten offering conducted pursuant to Section 6 hereof
notifies the Company and the Electing Holders that the total amount of
securities which the Electing Holders and the holders of such piggy-back rights
intend to include in any Shelf Registration Statement is so large as to
materially threaten the success of such offering (including the price at which
such securities can be sold), then the amount, number or kind of securities to
be offered for the account of holders of such piggy-back rights will be reduced
to the extent necessary to reduce the total amount of securities to be included
in such offering to the amount, number and kind recommended by the Managing
Underwriter prior to any reduction in the amount of Registrable Securities to be
included in such Shelf Registration Statement.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company and the Trust fail to perform
any of their obligations hereunder and that the Purchasers and the Holders from
time to time may be irreparably harmed by any such failure, and accordingly
agree that the Purchasers and such Holders, in addition to
any other remedy to which they may be entitled at law or in equity and without
limiting the remedies available to the Electing Holders under Section 7 hereof,
shall be entitled to compel specific performance of the obligations of the
Company and the Trust under this Registration Rights Agreement in accordance
with the terms and conditions of this Registration Rights Agreement, in any
court of the United States or any State thereof having jurisdiction.
(c) AMENDMENTS AND WAIVERS. This Agreement, including this Section
8(c), may be amended, and waivers or consents to departures from the provisions
hereof may be given, only by a written instrument duly executed by the Company,
the Trust and the holders of a majority in aggregate principal amount of
Registrable Securities then outstanding. Each Holder of Registrable Securities
outstanding at the time of any such amendment, waiver or consent or thereafter
shall be bound by any amendment, waiver or consent effected pursuant to this
Section 8(c), whether or not any notice, writing or marking indicating such
amendment, waiver or consent appears on the Registrable Securities or is
delivered to such Holder.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at such address set forth on the record
books of the Company or the Trust, as the case may be;
(ii) if to the Purchasers, initially at the address set forth
in the Purchase Agreement; and
(iii) if to the Company or the Trust, initially at its address
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have duly given
when received.
The Purchasers or the Company and the Trust by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(e) PARTIES IN INTEREST. The parties to this Agreement intend that all
Holders of Registrable Securities shall be entitled to receive the benefits of
this Agreement and that any Electing Holder shall be bound by the terms and
provisions of this Agreement by reason of such election with respect to the
Registrable Securities which are included in a Shelf Registration Statement. All
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the respective successors and assigns
of the parties hereto and any Holder from time to time of the Registrable
Securities to the aforesaid extent. In the event that any transferee of any
Holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be entitled
to receive the benefits of and, if an Electing Holder, be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement to the aforesaid extent.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(i) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
(j) SURVIVAL. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any
Electing Holder, any director, officer or partner of such Holder, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any controlling person of any of the foregoing, and shall survive the transfer
and registration of the Registrable Securities of such Holder.
[remainder of this page intentionally left blank]
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
Cummins Capital Trust I
By: /s/ XXXXXX XXXXX
---------------------------------------
Name: Xxxxxx Xxxxx
Title: Administrative Trustee
Cummins Inc.
By: /s/ XXXXXX XXXXX
---------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President-Treasurer
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
X.X Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Barney Inc.
By: /s/ XXXXXXX, XXXXX & CO.
------------------------------------------
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Purchasers
Exhibit A
CUMMINS, INC.
CUMMINS CAPITAL TRUST I
INSTRUCTION TO DTC PARTICIPANTS
(DATE OF MAILING)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]
The Depository Trust Company ("DTC") has identified you as a
DTC Participant through which beneficial interests in 7% Convertible Quarterly
Income Preferred Securities (liquidation amount $50 per preferred security) of
Cummins Capital Trust I (the "Trust") are held. The Preferred Securities are
guaranteed on a subordinated basis by Cummins Inc. (the "Company") as to the
payment of distributions, and as to payments on liquidation or redemption, to
the extent set forth in a guarantee agreement between the Company and BNY
Midwest Trust Company, as trustee (the "Guarantee") and may be (A) converted
into common stock, $2.50 par value per share ("Common Stock"), of the Company or
(B) exchanged under certain circumstances into 7% Junior Subordinated
Convertible Debentures Due June 15, 2031 of the Company (the "Debentures") held
by the Trust which are convertible into Common Stock. The Preferred Securities,
the Debentures, the Guarantee and the Common Stock issuable upon conversion of
the Preferred Securities or the Debentures, or both, are referred to
collectively as the "Securities."
The Company and the Trust are in the process of registering
the Securities under the Securities Act of 1933 for resale by the beneficial
owners thereof. In order to have your Securities included in the registration
statement, you must complete and return the enclosed Notice of Registration
Statement and Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities
receive a copy of the enclosed materials as soon as possible as their rights to
have the Securities included in the registration statement depend upon their
returning the Notice and Questionnaire by [DEADLINE FOR RESPONSE]. Please
forward a copy of the enclosed documents to each beneficial owner that holds
interests in the Securities through you. If you require more copies of the
enclosed materials or have any questions pertaining to this matter, please
contact:
Cummins Inc. Cravath, Swaine & Xxxxx
500 Xxxxxxx Street, Box 0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000-0000 or 000 Xxxxxx Xxxxxx
Attention: Vice President-Treasurer Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
A-1
CUMMINS INC.
CUMMINS CAPITAL TRUST I
Notice of Registration Statement
and
SELLING SECURITYHOLDER QUESTIONNAIRE
(Date)
Reference is hereby made to the Registration Rights Agreement
(the "Registration Rights Agreement") among Cummins Capital Trust I (the
"Trust"), Cummins Inc. (the "Company") and the Purchasers named therein.
Pursuant to the Registration Rights Agreement, the Company and the Trust have
filed with the United States Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Trust's 7% Convertible
Quarterly Income Preferred Securities (liquidation amount $50 per preferred
security) (the "Preferred Securities"), the Company's 7% Junior Subordinated
Convertible Debentures Due June 15, 2031 (the "Debentures"), the guarantee of
the Company pursuant to the guarantee agreement between the Company and BNY
Midwest Trust Company, as trustee (the "Guarantee"), and the shares of common
stock of the Company, $2.50 par value, issuable upon conversion of the Preferred
Securities or the Debentures, or both, (the "Common Stock", and together with
the Preferred Securities, the Debentures and the Guarantee, the "Securities"). A
copy of the Registration Rights Agreement is attached hereto. All capitalized
terms not otherwise defined herein shall have the meanings ascribed thereto in
the Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined
below) is entitled to have the Registrable Securities beneficially owned by it
included in the Shelf Registration Statement. In order to have Registrable
Securities included in the Shelf Registration Statement, this Notice of
Registration Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the Company's
counsel at the address set forth herein for receipt ON OR BEFORE [DEADLINE FOR
RESPONSE]. Beneficial owners of Registrable Securities who do not complete,
execute and return this Notice and Questionnaire by such date (i) will not be
named as selling securityholders in the Shelf Registration Statement and (ii)
may not use the Prospectus forming a part thereof for resales of Registrable
Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
A-2
The term "REGISTRABLE SECURITIES" is defined in the
Registration Rights Agreement to mean all or any portion of the Securities
issued from time to time; PROVIDED, HOWEVER, that a security ceases to be a
Registrable Security when it is no longer a Restricted Security.
The term "RESTRICTED SECURITY" is defined in the Registration
Rights Agreement to mean any Security except any such Security which (i) has
been effectively registered under the Securities Act and sold in a manner
contemplated by the Shelf Registration Statement, (ii) has been transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or is transferable pursuant to paragraph (k) of such Rule 144 (or any
successor provision thereto), (iii) has been sold in compliance with Regulation
S under the Securities Act (or any successor thereto) and does not constitute
the unsold allotment of a distributor within the meaning of Regulation S under
the Securities Act, or (iv) has otherwise been transferred and a new Security
not subject to transfer restrictions under the Securities Act has been delivered
by or on behalf of the Trust or the Company in accordance with the terms of the
Trust Agreement or the Indenture, as the case may be.
ELECTION
The undersigned holder (the "Selling Securityholder") of
Registrable Securities hereby elects to include in the Shelf Registration
Statement the Registrable Securities beneficially owned by it and listed below
in Item (3). The undersigned, by signing and returning this Notice and
Questionnaire, agrees to be bound with respect to such Registrable Securities by
the terms and conditions of this Notice and Questionnaire and the Registration
Rights Agreement, including, without limitation, Section 5 of the Registration
Rights Agreement, as if the undersigned Selling Securityholder were an original
party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company, the Trust and to BNY Midwest Trust Company, as trustee, the
Notice of Transfer set forth in Appendix A to the Prospectus. This Notice of
Transfer is set forth as Exhibit A to the Prospectus and as Exhibit B to the
Registration Rights Agreement.
The Selling Securityholder hereby provides the following
information to the Company and the Trust and represents and warrants that such
information is accurate and complete:
A-3
QUESTIONNAIRE
(1) (a) Full legal name of Selling Securityholder:
--------------------------------------------------------------
(b) Full legal name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in Item (3) below:
--------------------------------------------------------------
(c) Full legal name of DTC Participant (if applicable and if not
the same as (b) above) through which Registrable Securities
listed in Item (3) below are held:
--------------------------------------------------------------
(2) Address for Notices to Selling Securityholder:
---------------------------------------
---------------------------------------
---------------------------------------
Telephone:
---------------------------------------
Fax:
---------------------------------------
Contact Person:
---------------------------------------
E-mail address:*
---------------------------------------
*IF YOU PROVIDE AN E-MAIL ADDRESS, THE COMPANY MAY FURNISH YOU WITH
COPIES OF THE SHELF REGISTRATION STATEMENT, THE PROSPECTUS (INCLUDING
EACH PRELIMINARY PROSPECTUS) INCLUDED IN THE SHELF REGISTRATION
STATEMENT AND ANY AMENDMENT OR SUPPLEMENT THERETO, VIA E-MAIL, AS
OPPOSED TO REGULAR MAIL.
(3) Beneficial ownership of Securities:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (3), THE UNDERSIGNED DOES NOT
BENEFICIALLY OWN ANY SECURITIES.
(a) Number of Preferred Securities beneficially owned:
---------------------
CUSIP No(s). of such Preferred Securities:
------------------
Principal amount of Debentures (if any) issued in exchange for
Preferred Securities:
-----------------------------------------
CUSIP No(s). of such Debentures:
----------------------------
Number of shares of Common Stock (if any) issued upon
conversion of the Preferred Securities or the Debentures, or
both:
---------------------------------------------------------
(b) Principal amount of Securities other than Registrable
Securities beneficially owned:
--------------------------------
CUSIP No(s). of such other Securities:
------------------------
A-4
Number of shares of Common Stock (if any) issued upon
conversion of such other Securities:
--------------------------
(c) Number of Preferred Securities which the undersigned wishes to
be included in the Shelf Registration Statement:
--------------
CUSIP No(s). of such Preferred Securities:
--------------------
Principal amount of Debentures (if any) issued in exchange for
Preferred Securities which the undersigned wishes to be
included in the Shelf Registration Statement:
CUSIP No(s). of such Debentures:
------------------------------
Number of shares of Common Stock (if any) issued upon
conversion of Registrable Securities which are to be included
in the Shelf Registration Statement:
--------------------------
(4) Beneficial Ownership of Other Securities:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (4), THE UNDERSIGNED SELLING
SECURITYHOLDER IS NOT THE BENEFICIAL OR REGISTERED OWNER OF ANY SHARES
OF COMMON STOCK OR ANY OTHER SECURITIES OF THE COMPANY, OTHER THAN THE
SECURITIES AND SHARES OF COMMON STOCK LISTED ABOVE IN ITEM (3).
State any exceptions here:
(5) Relationships with the Trust or the Company:
EXCEPT AS SET FORTH BELOW, NEITHER THE SELLING SECURITYHOLDER NOR ANY
OF ITS AFFILIATES, OFFICERS, DIRECTORS OR PRINCIPAL EQUITY HOLDERS (5%
OR MORE) HAS HELD ANY POSITION OR OFFICE OR HAS HAD ANY OTHER MATERIAL
RELATIONSHIP WITH THE TRUST OR THE COMPANY (OR ITS PREDECESSORS OR
AFFILIATES) DURING THE PAST THREE YEARS.
State any exceptions here:
(6) Plan of Distribution:
EXCEPT AS SET FORTH BELOW, THE UNDERSIGNED SELLING SECURITYHOLDER
INTENDS TO DISTRIBUTE THE REGISTRABLE SECURITIES LISTED ABOVE IN ITEM
(3) ONLY AS FOLLOWS (IF AT ALL): SUCH REGISTRABLE SECURITIES MAY BE
SOLD FROM TIME TO TIME DIRECTLY BY THE UNDERSIGNED SELLING
SECURITYHOLDER OR, ALTERNATIVELY, THROUGH UNDERWRITERS, BROKER-DEALERS
OR AGENTS. SUCH REGISTRABLE SECURITIES MAY BE SOLD IN ONE OR MORE
TRANSACTIONS AT FIXED PRICES, AT PREVAILING MARKET PRICES AT THE TIME
OF SALE, AT VARYING PRICES DETERMINED AT THE TIME OF SALE, OR AT
NEGOTIATED PRICES. SUCH SALES MAY BE EFFECTED IN TRANSACTIONS (WHICH
MAY INVOLVE CROSSES OR BLOCK TRANSACTIONS) (I) ON ANY NATIONAL
SECURITIES EXCHANGE OR QUOTATION SERVICE ON WHICH THE REGISTERED
SECURITIES MAY BE LISTED OR QUOTED AT THE TIME
A-5
OF SALE, (II) IN THE OVER-THE-COUNTER MARKET, (III) IN TRANSACTIONS
OTHERWISE THAN ON SUCH EXCHANGES OR SERVICES OR IN THE OVER-THE-COUNTER
MARKET, OR (IV) THROUGH THE WRITING OF OPTIONS. IN CONNECTION WITH
SALES OF THE REGISTRABLE SECURITIES OR OTHERWISE, THE SELLING
SECURITYHOLDER MAY ENTER INTO HEDGING TRANSACTIONS WITH BROKER-DEALERS,
WHICH MAY IN TURN ENGAGE IN SHORT SALES OF THE REGISTRABLE SECURITIES
IN THE COURSE OF HEDGING THE POSITIONS THEY ASSUME. THE SELLING
SECURITYHOLDER MAY ALSO SELL REGISTRABLE SECURITIES SHORT AND DELIVER
REGISTRABLE SECURITIES TO CLOSE OUT SUCH SHORT POSITIONS, OR LOAN OR
PLEDGE REGISTRABLE SECURITIES TO BROKER-DEALERS THAT IN TURN MAY SELL
SUCH SECURITIES.
State any exceptions here:
Note: In no event may such method(s) of distribution take the
form of an underwritten offering of the Registrable Securities without the prior
agreement of the Company.
By signing below, the Selling Securityholder acknowledges that
it understands its obligation to comply, and agrees that it will comply, with
the provisions of the Exchange Act and the rules and regulations thereunder,
particularly Regulation M.
In the event that the Selling Securityholder transfers all or
any portion of the Registrable Securities listed in Item (3) above after the
date on which such information is provided to the Trust or the Company, the
Selling Securityholder agrees to notify the transferee(s) at the time of the
transfer of its rights and obligations under this Notice and Questionnaire and
the Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the
disclosure of the information contained herein in its answers to Items (1)
through (6) above and the inclusion of such information in the Shelf
Registration Statement and related Prospectus. The Selling Securityholder
understands that such information will be relied upon by the Trust and the
Company in connection with the preparation of the Shelf Registration Statement
and related Prospectus.
A-6
In accordance with the Selling Securityholder's obligation
under Section 3(a) of the Registration Rights Agreement to provide such
information as may be required by law for inclusion in the Shelf Registration
Statement, the Selling Securityholder agrees to promptly notify the Trust and
the Company of any inaccuracies or changes in the information provided herein
which may occur subsequent to the date hereof at any time while the Shelf
Registration Statement remains in effect. All notices hereunder and pursuant to
the Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Company and the Trust:
Cummins Inc.
000 Xxxxxxx Xxxxxx, Xxx 0000
Xxxxxxxx, Xxxxxxx 00000-0000
Attention: Vice President-Treasurer
(ii) With a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company, the Trust and the Selling Securityholder (with respect to the
Registrable Securities beneficially owned by such Selling Securityholder and
listed in Item (3) above. This Agreement shall be governed in all respects by
the laws of the State of New York.
A-7
IN WITNESS WHEREOF, the undersigned, by authority duly given,
has caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
----------------------------
--------------------------------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By:
-----------------------------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
A-8
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Cummins Capital Trust I
c/o BNY Midwest Trust Company
0 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Corporate Finance Unit
Re: Cummins Capital Trust I (the "Trust")
7% Convertible Cumulative Quarterly Income
Preferred Securities (the "Preferred Securities")
Dear Sirs:
Please be advised that _____________________ has transferred
shares of Preferred Securities, or $ aggregate principal amount of Cummins Inc.
(the "Company") 7% Junior Subordinated Convertible Debentures Due June 15, 2031
(the "Debentures") or $ aggregate principal amount of the Company's common
stock, $2.50 par value, issued on conversion of the Preferred Securities or the
Debentures, or both, ("Common Stock") pursuant to an effective Shelf
Registration Statement on Form S-3 (File No. 333- ) filed by the Company.
We hereby certify that the prospectus delivery requirements,
if any, of the Securities Act of 1933, as amended, have been satisfied and that
the above-named beneficial owner of the Preferred Securities, Debentures or
Common Stock is named as a "Selling Securityholder" in the Prospectus dated , or
in supplements thereto, and that the aggregate principal amount of the
Debentures, the Preferred Securities or the Common Stock transferred are the
Debentures, the Preferred Securities or the Common Stock listed in such
Prospectus opposite such owner's name.
Dated:
Very truly yours,
------------------------
(Name)
By:
------------------------
(Authorized Signature)
B-1
