Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
DATED AS OF NOVEMBER 2, 1998
AMONG
TYCO INTERNATIONAL GROUP S.A.,
AND
TYCO INTERNATIONAL LTD.
AND
▇▇▇▇▇▇ BROTHERS INC.,
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
CREDIT SUISSE FIRST BOSTON CORPORATION,
AND
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into this 2nd day of November, 1998 among Tyco International Group
S.A., a Luxembourg company (the "Company"), Tyco International Ltd., a
Bermuda company (the "Guarantor") and ▇▇▇▇▇▇ Brothers Inc., ▇.▇. ▇▇▇▇▇▇ &
Co., Credit Suisse First Boston Corporation and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated
October 28, 1998, among the Company, the Guarantor and the Initial Purchasers
(the "Purchase Agreement"), which provides for the sale by the Company to
the Initial Purchasers of an aggregate of $400,000,000 principal amount of
the Company's 5.875% Notes due 2004, and $400,000,000 principal amount of
6.125% Notes due 2008, and, in each case, related guarantees of the
Securities issued by the Guarantor (collectively, the "Securities"). In
order to induce the Initial Purchasers to enter into the Purchase Agreement,
the Company and the Guarantor has agreed to provide to the Initial Purchasers
and their direct and indirect transferees the registration rights set forth
in this Agreement. The execution of this Agreement is a condition to the
closing under the Purchase 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:
"1933 ACT" shall mean the United States Securities Act of 1933, as
amended from time to time.
"1934 ACT" shall mean the United States Securities Exchange Act of
l934, as amended from time to time.
"CLOSING DATE" shall mean the Closing Time as defined in the
Purchase Agreement.
"COMPANY" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
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"DEPOSITARY" shall mean The Depository Trust Company, or any other
depositary appointed by the Company, PROVIDED, HOWEVER, that such
depositary must have an address in the Borough of Manhattan, in the City of
New York.
"EXCHANGE OFFER" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2.1
hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the
1933 Act effected pursuant to Section 2.1 hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, including the Prospectus contained therein, all exhibits thereto
and all documents incorporated by reference therein.
"EXCHANGE PERIOD" shall have the meaning set forth in Section 2.1
hereof.
"EXCHANGE SECURITIES" shall mean (i) the 5.875% Notes due 2004
issued by the Company, (ii) the 6.125% Notes due 2008, issued by the
Company and (iii) the related guarantees of the 5.875% Exchange Notes
and the 6.125% Exchange Notes issued by the Guarantor, containing terms
identical to the Securities in all material respects (except for
references to certain interest rate provisions, restrictions on
transfers and restrictive legends), to be offered to Holders of
Securities in exchange for Registrable Securities pursuant to the
Exchange Offer.
"HOLDER" shall mean an Initial Purchaser, for so long as it owns
any Registrable Securities, and each of its successors, assigns and
direct and indirect transferees who become registered owners of
Registrable Securities under the Indenture and each Participating
Broker-Dealer that holds Exchange Securities for so long as such
Participating Broker-Dealer is required to deliver a prospectus meeting
the requirements of the 1933 Act in connection with any resale of such
Exchange Securities.
"INDENTURE" shall mean the Indenture relating to the Securities
and the Exchange Securities, dated as of June 9, 1998, as supplemented
by Supplemental Indenture No. 5, dated as of November 2, 1998, and
Supplemental Indenture No. 6, dated as of November 2, 1998, in each case
among the Company, the Guarantor and The Bank of New York, as trustee,
as the same may be amended, supplemented, waived or otherwise modified
from time to time in accordance with the terms thereof.
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"INITIAL PURCHASER" or "INITIAL PURCHASERS" shall have the
meaning set forth in the preamble.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of Outstanding (as defined in the Indenture)
Registrable Securities or each series of Registrable Securities as the
case may be; 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 and other obligors
on the Securities or any Affiliate (as defined in the Indenture) of the
Company shall be disregarded in determining whether such consent or
approval was given by the Holders of such required percentage amount;
PROVIDED FURTHER that, when used in connection with the Shelf
Registration Statement, the term Majority Holders shall mean the Holders
of a majority of the aggregate principal amount of all series of
Registrable Securities participating therein or whose securities are
being sold thereunder in the particular case, as applicable.
"PARTICIPATING BROKER-DEALER" shall mean any of ▇▇▇▇▇▇ Brothers
Inc., ▇.▇. ▇▇▇▇▇▇ Securities Inc., Credit Suisse First Boston
Corporation and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation and
any other broker-dealer which makes a market in the Securities and
exchanges Registrable Securities in the Exchange Offer for Exchange
Securities.
"PERSON" shall mean an individual, partnership (general or
limited), corporation, limited liability company, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
"PRIVATE EXCHANGE" shall have the meaning set forth in Section
2.1 hereof.
"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 any
such 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.
"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
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the 1933 Act and such Securities shall have been disposed of pursuant to
such Registration Statement, (ii) such Securities have been sold to the
public pursuant to Rule l44 (or any similar provision then in force, but
not Rule 144A) under the 1933 Act or is saleable pursuant to Rule 144(k)
under the 1933 Act (or any similar provision then in force), (iii) such
Securities shall have ceased to be outstanding or (iv) the Exchange Offer
is consummated (except in the case of Securities purchased from the Company
and continued to be held by the Initial Purchasers).
"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 National
Association of Securities Dealers, Inc. (the "NASD") registration and
filing fees, including, if applicable, the fees and expenses of any
"qualified independent underwriter" (and the reasonable fees and
expenses of its counsel) that is required to be retained by any holder
of Registrable Securities in accordance with the rules and regulations
of the NASD, (ii) all fees and expenses incurred in connection with
compliance with state 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 blue sky
qualification of any of the Exchange Securities or Registrable
Securities and any filings with the NASD), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus,
any amendments or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to the
performance of and compliance with this Agreement, (iv) all fees and
expenses incurred in connection with the listing, if any, of any of the
Registrable Securities on any securities exchange or exchanges, (v) all
rating agency fees, (vi) the fees and disbursements of counsel for the
Company and 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, (vii) the
fees and expenses of the Trustee, and any escrow agent or custodian,
(viii) the reasonable fees and expenses of the Initial Purchasers in
connection with the Exchange Offer, including the reasonable fees and
expenses of one counsel to the Initial Purchasers in connection
therewith, (ix) the reasonable fees and disbursements of one special
counsel representing the Holders of Registrable Securities in connection
with the Shelf Registration Statement and (x) any fees and disbursements
of the underwriters customarily required to be paid by issuers or
sellers of securities and the fees and expenses of any special experts
retained by the Company in connection with any Registration Statement,
but excluding underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of Registrable Securities by
a Holder.
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"REGISTRATION STATEMENT" shall mean any registration statement of
the Company which covers any 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 or any
successor agency or government body performing the functions currently
performed by the United States Securities and Exchange Commission.
"SHELF REGISTRATION" shall mean a registration effected pursuant
to Section 2.2 hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf"
registration statement of the Company and the Guarantor pursuant to the
provisions of Section 2.2 of this Agreement which covers Registrable
Securities or Private Exchange Securities on an appropriate form under
Rule 415 under the 1933 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 with respect to the Securities
and the Exchange Securities under the Indenture.
2. REGISTRATION UNDER THE 1933 ACT.
2.1 EXCHANGE OFFER. The Company and the Guarantor shall, for the
benefit of the Holders, at the Company's and the Guarantor's cost, use their
reasonable best efforts to (A) prepare and, as soon as practicable but not later
than 90 days following the Closing Date, file with the SEC an Exchange Offer
Registration Statement on an appropriate form under the 1933 Act with respect to
a proposed Exchange Offer and the issuance and delivery to the Holders, in
exchange for the Registrable Securities, of a like principal amount of Exchange
Securities, (B) to cause the Exchange Offer Registration Statement to be
declared effective under the 1933 Act within 150 days of the Closing Date, (C)
keep the Exchange Offer Registration Statement effective until the closing of
the Exchange Offer and (D) cause the Exchange Offer to be consummated not later
than 180 days following the Closing Date. Upon the effectiveness of the
Exchange Offer Registration Statement, the Company and the Guarantor shall
promptly commence the Exchange Offer, it being the objective of such Exchange
Offer to enable each Holder eligible and electing to exchange Registrable
Securities for Exchange Securities to
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transfer such Exchange Securities from and after their receipt without any
limitations or restrictions under the 1933 Act and under state securities or
blue sky laws.
Each Holder participating in the Exchange Offer shall be required, as
a condition to such participation, to represent in writing to the Company that,
at the time of the consummation of the Exchange Offer, such Holder (a) is not an
affiliate of the Company within the meaning of Rule 405 under the 1933 Act, (b)
is not a broker-dealer tendering Registrable Securities acquired directly from
the Company for its own account, (c) acquired the Exchange Securities in the
ordinary course of such Holder's business and (d) has no arrangements or
understandings with any Person to participate in the Exchange Offer for the
purpose of distributing the Exchange Securities.
In connection with the Exchange Offer, the Company and the Guarantor
shall:
(a) mail as promptly as practicable 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;
(b) keep the Exchange Offer open for acceptance for a period of
not less than 30 calendar days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law) (such period referred to
herein as the "Exchange Period");
(c) utilize the services of the Depositary for the Exchange
Offer;
(d) permit Holders to withdraw tendered Registrable Securities
at any time prior to 5:00 p.m. (Eastern Standard Time), on the last business day
of the Exchange Period, 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 such Holder's election to have
such Securities exchanged;
(e) notify each Holder that any Registrable Security not
tendered will remain outstanding and continue to accrue interest, but will not
retain any rights under this Agreement (except in the case of the Initial
Purchasers and Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
The Exchange Securities shall be issued under (i) the Indenture or
(ii) an indenture identical in all material respects to the Indenture and which,
in either case, has
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been qualified under the Trust Indenture Act of 1939, as amended (the "TIA"), or
is exempt from such qualification and shall provide that the Exchange Securities
shall not be subject to the transfer restrictions set forth in the Indenture.
The Indenture or such indenture shall provide that the Exchange Securities and
the Securities having the same interest rate and maturity shall vote and consent
together on all matters as one class and that none of the Exchange Securities or
the Securities having the same interest rate and maturity will have the right to
vote or consent as a separate class on any matter.
As soon as practicable after the close of the Exchange Offer, the
Company and the Guarantor shall:
(i) accept for exchange all 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 shall be an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Securities to the Depositary for the benefit of each Holder
of Registrable Securities so accepted for exchange in a principal
amount equal to the principal amount of the Registrable Securities of
such Holder so accepted for exchange.
Interest on each Exchange Security 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 date of original issuance. 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) the due tendering of Registrable Securities in
accordance with the Exchange Offer, (iii) that each Holder of Registrable
Securities exchanged in the Exchange Offer shall have made the representations
set forth above in this Section 2.1 and such other representations as may be
reasonably necessary under applicable SEC rules, regulations or interpretations
to render the use of Form S-4 or other appropriate form under the 1933 Act
available and (iv) that no action or proceeding shall have been instituted or
threatened in any court or by or before any governmental agency with respect to
the Exchange Offer which, in the Company's and the Guarantor' judgment, would
reasonably be expected to impair the ability of the Company and the Guarantor to
proceed with the Exchange Offer. The Company and the Guarantor shall inform the
Initial Purchasers of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchasers
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shall have the right to contact such Holders and otherwise facilitate the tender
of Registrable Securities in the Exchange Offer.
2.2 SHELF REGISTRATION. (i) If, because of any changes in law, SEC
rules or regulations or applicable interpretations thereof by the staff of the
SEC, the Company and the Guarantor are not permitted to effect the Exchange
Offer as contemplated by Section 2.1 hereof, (ii) if for any other reason the
Exchange Offer Registration Statement is not declared effective within 150 days
following the original issue of the Registrable Securities or the Exchange Offer
is not consummated within 180 days after the original issue of the Registrable
Securities, (iii) upon the request of any of the Initial Purchasers with respect
to Registrable Securities that are not eligible to be exchanged for Exchange
Notes in the Exchange Offer or the Initial Purchasers do not receive freely
tradeable Exchange Securities in the Exchange Offer or (iv) if a Holder known or
identified in writing to the Company (other than an Initial Purchaser) is not
permitted by applicable law 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, then in case of each of clauses (i)
through (iv) the Company and the Guarantor shall, at their cost:
(a) As promptly as practicable, file with the SEC, and
thereafter shall use their reasonable best efforts to cause to be
declared effective within 150 days after the original issue of the
Registrable Securities, 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 participating in the Shelf Registration and set forth
in such Shelf Registration Statement; PROVIDED, HOWEVER, that no
Holder shall be entitled to have Registrable Securities held by it
included in the Shelf Registration Statement unless such Holder agrees
in writing to be bound by all of the provisions of this Agreement
applicable to such Holder and furnishes to the Company in writing such
information as the Company may reasonably request for inclusion in the
Shelf Registration Statement or any Prospectus included therein.
(b) Use their reasonable best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by Holders for a period
of two years from the date the Shelf Registration Statement is
declared effective by the SEC, or for such shorter period that will
terminate when all Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be outstanding or otherwise to be
Registrable Securities (the "Effectiveness Period"); PROVIDED,
HOWEVER, that the Effectiveness Period in respect of the Shelf
Registration Statement shall
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be extended to the extent required to permit dealers to comply with
the applicable prospectus delivery requirements of Rule 174 under the
1933 Act and as otherwise provided herein.
(c) Notwithstanding any other provisions hereof, use their
reasonable best efforts to ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming part
thereof and any supplement thereto complies in all material respects
with the 1933 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.
The Company and the Guarantor shall not permit any securities other
than Registrable Securities to be included in the Shelf Registration Statement.
The Company and the Guarantor further agree, if necessary, to supplement or
amend the Shelf Registration Statement, as required by Section 3(b) below, 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.
2.3 EXPENSES. The Company and the Guarantor shall pay all
Registration Expenses in connection with the registration pursuant to Section
2.1 or 2.2. Each Holder shall pay all underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
2.4. EFFECTIVENESS. (a) The Company and the Guarantor will be deemed
not to have used their 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 period if the Company or
the Guarantor voluntarily takes any action that would, or omits to take any
action which omission would, result in any such Registration Statement not being
declared 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 as and to the extent contemplated hereby, unless such action is
required by applicable law.
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(b) An Exchange Offer Registration Statement pursuant to Section 2.1
hereof or a Shelf Registration Statement pursuant to Section 2.2 hereof will 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 an Exchange Offer Registration
Statement or a Shelf 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 of competent jurisdiction, such Registration
Statement will be deemed not to have become effective during the period of such
interference, until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume.
2.5 INTEREST. The Indenture executed in connection with the
Securities will provide that in the event that either (a) the Exchange Offer
Registration Statement is not filed with the Commission on or prior to the 90th
calendar day following the date of original issue of the Securities, (b) the
Exchange Offer Registration Statement has not been declared effective on or
prior to the 150th calendar day following the date of original issue of the
Securities or (c) the Exchange Offer is not consummated or a Shelf Registration
Statement is not declared effective, in either case, on or prior to the 180th
calendar day following the date of original issue of the Securities (each such
event referred to in clauses (a) through (c) above, a "Registration Default"),
the interest rate borne by the Securities shall be increased ("Additional
Interest") by one-quarter of one percent per annum upon the occurrence of each
Registration Default, which rate will increase by one quarter of one percent
each 90-day period that such Additional Interest continues to accrue under any
such circumstance, provided that the maximum aggregate increase in the interest
rate will in no event exceed one percent (1%) per annum; PROVIDED, HOWEVER, that
no Additional Interest shall be payable if the Exchange Offer Registration
Statement is not filed or declared effective or the Exchange Offer is not
consummated on account of the reasons set forth in clause (i) of the first
paragraph of this Section 2.2 (it being understood, however, that in any such
case the Company and the Guarantor shall be obligated to file a Shelf
Registration Statement and Additional Interest shall be payable if the Shelf
Registration Statement is not declared effective in accordance with clause (c)),
that no Additional Interest shall be payable if the Shelf Registration Statement
is not declared effective as set forth above because the request under clause
(iii) of Section 2.2 or notice under clause (iv) of such paragraph was not made
on a timely basis; and PROVIDED, FURTHER, that Additional Interest shall only be
payable in case the Shelf Registration Statement is not declared effective as
aforesaid with respect to Securities that have the right to be included, and
whose inclusion has been requested, in the Shelf Registration Statement.
Following the cure of all Registration Defaults the accrual of Additional
Interest will cease and the interest rate will revert to the original rate.
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If the Shelf Registration Statement is declared effective but shall
thereafter become unusable by the Holders for any reason (whether pursuant to
the last paragraph of Section 3 or otherwise), and the aggregate number of days
in any consecutive twelve-month period for which the Shelf Registration
Statement shall not be usable exceeds 30 days in the aggregate, then the
interest rate borne by the Securities included in the Shelf Registration
Statement will be increased by 0.25% per annum of the principal amount of the
Securities for the first 90-day period (or portion thereof) beginning on the
31st such date that such Shelf Registration Statement ceases to be usable, which
rate shall be increased by an additional 0.25% per annum of the principal amount
of the Securities at the beginning of each subsequent 90-day period, provided
that the maximum aggregate increase in the interest rate will in no event exceed
one percent (1%) per annum. Any amounts payable under this paragraph shall also
be deemed "Additional Interest" for purposes of this Agreement. Upon the Shelf
Registration Statement once again becoming usable, the interest rate borne by
such Securities will be reduced to the original interest rate if the Company is
otherwise in compliance with this Agreement at such time. Additional Interest
shall be computed based on the actual number of days elapsed in each 90-day
period in which the Shelf Registration Statement is unusable.
The Company and the Guarantor shall notify the Trustee within five
business days after each and every date on which an event occurs in respect of
which Additional Interest is required to be paid (an "Event Date"). Additional
Interest shall be paid by depositing with the Trustee, in trust, for the benefit
of the Holders of the Securities entitled to receive the interest payment, on or
before the applicable semiannual interest payment date, immediately available
funds in sums sufficient to pay the Additional Interest then due. The
Additional Interest due shall be payable on each interest payment date to the
record Holder of Securities entitled to receive the interest payment to be paid
on such date as set forth in the Indenture. Each obligation to pay Additional
Interest shall be deemed to accrue from and including the day following the
applicable Event Date.
3. REGISTRATION PROCEDURES.
In connection with the obligations of the Company and the Guarantor
with respect to Registration Statements pursuant to Sections 2.1 and 2.2 hereof,
the Company and the Guarantor shall:
(a) prepare and file with the SEC a Registration Statement, within
the relevant time period specified in Section 2, on the appropriate form under
the 1933 Act, which form (i) shall be selected by the Company and the Guarantor,
(ii) shall, in the case of a Shelf Registration, be available for the sale of
the Registrable Securities by the selling Holders thereof, (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
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statements required by the SEC to be filed therewith or incorporated by
reference therein, and (iv) shall comply in all respects with the requirements
of Regulation S-T under the 1933 Act, and use their 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; and
cause each Prospectus to be supplemented by any required prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provision then in force) under the 1933 Act and comply with the provisions of
the 1933 Act, the 1934 Act and the rules and regulations thereunder applicable
to them with respect to the disposition of all securities covered by each
Registration Statement during the applicable period in accordance (in the case
of a Shelf Registration) with the intended method or methods of distribution by
the selling Holders thereof (including sales by any Participating
Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities, at least five 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 selected by the Majority Holders
participating in the Shelf Registration; (ii) furnish to each Holder of
Registrable Securities 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 may
reasonably request, including financial statements and schedules and, if the
Holder so requests, all exhibits, in order to facilitate the public sale or
other disposition of the Registrable Securities; and (iii) hereby consent to the
use of the 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 their 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; PROVIDED, HOWEVER, that
none of the Company and the Guarantor shall 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
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which would subject it to general service of process or taxation in any such
jurisdiction where it is not then so subject;
(e) notify promptly each Holder of Registrable Securities included
under a Shelf Registration or any Participating Broker-Dealer who has notified
the Company and the Guarantor that it is utilizing the Exchange Offer
Registration Statement as provided in paragraph (f) below and, if requested by
such Holder or Participating Broker-Dealer, 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) in the case of a Shelf Registration,
if, between the effective date of such Registration Statement and the closing of
any sale of Registrable Securities covered thereby, the representations and
warranties of the Company and the Guarantor contained in any underwriting
agreement, securities sales agreement or other similar agreement, if any,
relating to the offering cease to be true and correct in all material respects,
(v) of the happening of any event or the discovery of any facts during the
period a Shelf Registration Statement is effective which makes any statement
made in such Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements therein not
misleading, (vi) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Registrable Securities or the
Exchange Securities, as the case may be, for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose and (vii) of any
determination by the Company that a post-effective amendment to such
Registration Statement would be appropriate;
(f) in the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution" which section shall be reasonably acceptable to ▇▇▇▇▇▇ Brothers
Inc. on behalf of the Participating Broker-Dealers, and which shall contain a
summary statement of the positions taken or policies made by the staff of the
SEC with respect to the potential "underwriter" status of any broker-dealer that
holds Registrable Securities acquired for its own account as a result of
market-making activities or other trading activities and that will be the
beneficial owner (as defined in Rule 13d-3 promulgated under the ▇▇▇▇ ▇▇▇) of
Exchange Securities to be received by such broker-dealer in the Exchange Offer,
whether such positions or policies have been publicly disseminated by the staff
of the SEC or such positions or policies, in the reasonable judgment of ▇▇▇▇▇▇
Brothers Inc. on behalf of the Participating Broker-Dealers and its counsel,
represent the prevailing views
-13-
of the staff of the SEC, including a statement that any such broker-dealer who
receives Exchange Securities for Registrable Securities pursuant to the Exchange
Offer may be deemed a statutory underwriter and must deliver a prospectus
meeting the requirements of the 1933 Act in connection with any resale of such
Exchange Securities, (ii) furnish to each Participating Broker-Dealer who has
delivered to the Company the notice referred to in Section 3(e), 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 Participating Broker-Dealer may reasonably request, (iii)
hereby consent to the use of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement thereto, by any Person
subject to the prospectus delivery requirements of the SEC, including all
Participating Broker-Dealers, in connection with the sale or transfer of the
Exchange Securities covered by the Prospectus or any amendment or supplement
thereto, provided any such Person has provided the Company in writing with any
information required by Item 507 or Item 508 of Regulation S-K under the 1933
Act (or any similar provision then in force) for inclusion in the Prospectus
contained in the Exchange Offer Registration Statement, and (iv) include in the
transmittal letter or similar documentation to be executed by an exchange
offeree in order to participate in the Exchange Offer (x) the following
provision:
"If the exchange offeree is a broker-dealer holding Registrable
Securities acquired for its own account as a result of market-making
activities or other trading activities, it will deliver a prospectus
meeting the requirements of the 1933 Act in connection with any resale
of Exchange Securities received in respect of such Registrable
Securities pursuant to the Exchange Offer;" and
(y) a statement to the effect that by a broker-dealer making the acknowledgment
described in clause (x) and by delivering a Prospectus in connection with the
exchange of Registrable Securities, the broker-dealer will not be deemed to
admit that it is an underwriter within the meaning of the 1933 Act; and
(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 comment letters received
from the SEC or any other 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 at the earliest
possible moment;
-14-
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, and each underwriter, if any, without charge, at least
one conformed copy of each Registration Statement and any post-effective
amendment thereto, including financial statements and schedules (without
documents incorporated therein by reference and all exhibits thereto, unless
requested in writing);
(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 enable such Registrable Securities to be in
such denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holders or the underwriters, if any, may
reasonably request at least three business days prior to the closing of any sale
of Registrable Securities;
(k) in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts, each as contemplated by Sections 3(e)(v)
and 3(e)(vi) hereof, as promptly as practicable after the occurrence of such an
event, use their best efforts to prepare a supplement or post-effective
amendment to the 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
or Participating Broker-Dealers, 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 or will remain so
qualified. 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 number of copies of the Prospectus as amended or
supplemented, as such Holder may reasonably request;
(l) in the case of a Shelf Registration, within a reasonable time
prior to the filing of any Registration Statement, any Prospectus, any amendment
to a Registration Statement or amendment or supplement to a Prospectus or any
document which is to be incorporated by reference into a Registration Statement
or a Prospectus after initial filing of a Registration Statement, provide copies
of such document to the Initial Purchasers on behalf of such Holders; and make
representatives of the Company and the Guarantor as shall be reasonably
requested by the Holders of Registrable Securities, or the Initial Purchasers on
behalf of such Holders, available for discussion of such document;
(m) use their reasonable best efforts to obtain a CUSIP number 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
-15-
certificates for the Exchange Securities or the Registrable Securities, as the
case may be, in a form eligible for deposit with the Depositary;
(n) (i) cause the Indenture to be qualified under the TIA in
connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be, (ii) cooperate with the Trustee to effect such
changes to the Indenture as may be required for the Indenture to be so qualified
in accordance with the terms of the TIA, to the extent that such changes may be
made without the consent of the Holders or the holders of any other securities
issued under the Indenture and (iii) execute, and use their reasonable best
efforts to cause the Trustee to execute, all documents as may be required to
effect such changes, and all other forms and documents required to be filed with
the SEC to enable the Indenture to be so qualified in a timely manner;
(o) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and appropriate
actions 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:
(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
them;
(ii) obtain opinions of counsel to the Company and the
Guarantor and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the managing
underwriters, if any, or, if there are no underwriters, the Majority
Holders) addressed to the underwriters, if any, or, if there are no
underwriters, the selling Holders of Registrable Securities 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;
(iii) obtain "cold comfort" letters and updates thereof from the
Company's and the Guarantor's independent certified public accountants
(and, if necessary, any other independent certified public accountants
of any subsidiary of the Company or of any business acquired by the
Company for which financial statements are, or are required to be,
included in the Registration Statement) addressed to the underwriters,
if any, and if there are no underwriters, use reasonable efforts to
have such letter addressed to the selling Holders of Registrable
Securities (to the extent consistent with Statement on Auditing
Standards No. 72 of the American Institute of
-16-
Certified Public Accounts), 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) if so requested by the Majority Holders, 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, cause the same
to set forth indemnification provisions and procedures substantially
equivalent to the indemnification provisions and procedures set forth
in Section 4 hereof with respect to the underwriters and all other
parties to be indemnified pursuant to said Section or, at the request
of any underwriters, in the form customarily provided to such
underwriters in similar types of transactions; provided such
underwriting agreement shall contain customary provisions regarding
indemnification of the Company and the Guarantor with the respect to
information provided by the underwriters; and
(vi) deliver such documents and certificates as may be reasonably
requested by the managing underwriter or, if there are no
underwriters, the Majority Holders and as are customarily delivered in
similar offerings, if any.
The above shall be done at (i) the effectiveness of such Registration Statement
(and, if requested by the Majority Holders, 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 and the Guarantor shall provide written notice to the
Holders of all Registrable Securities whose Securities are included in the Shelf
Registration Statement of such underwritten offering at least 15 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 10
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;
(p) in the case of a Shelf Registration or if a Prospectus is
required to be delivered by any Participating Broker-Dealer in the case of an
Exchange Offer, make available for inspection by representatives of the Majority
Holders of the Registrable
-17-
Securities, any underwriters participating in any disposition pursuant to a
Shelf Registration Statement, any Participating Broker-Dealer and any counsel or
accountant retained by any of the foregoing, all financial and other records,
pertinent corporate documents and properties of the Company and the Guarantor
reasonably requested by any such persons, and cause the respective officers,
directors, employees, and any other agents of the Company and the Guarantor to
supply all information reasonably requested by any such representative,
underwriter, special counsel or accountant in connection with a Registration
Statement, and make such representatives of the Company and the Guarantor
available for discussion of such documents as shall be reasonably requested by
the Initial Purchasers, in each case as shall be customary and reasonably
necessary to enable such Persons to exercise applicable due diligence
responsibilities; PROVIDED that any information that is designated by the
Company or the Guarantor in good faith, in writing, as confidential at the time
of delivery of such information shall be kept confidential by such Persons,
unless such information becomes available to the public generally not as a
result of a breach of this Agreement, and unless disclosure is required in
connection with a court proceeding or required by law, in which case prior to
such disclosure the Company and the Guarantor shall be given such notice as
shall be reasonably practicable in the circumstances to enable the Company or
the Guarantor to take action to prevent disclosure of such information;
(q) (i) in the case of an Exchange Offer Registration Statement,
within 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 such Prospectus,
provide copies of such document to the Initial Purchasers and their counsel and
make such changes in any such document prior to the filing thereof as the
Initial Purchasers or their counsel may reasonably request and, except as
otherwise required by applicable law, not file any such document in a form to
which the Initial Purchasers or their counsel shall not have previously been
advised and furnished a copy of or to which the Initial Purchasers shall
reasonably object, and make the representatives of the Company and the Guarantor
available for discussion of such documents as shall be reasonably requested by
the Initial Purchasers; and
(ii) in the case of a Shelf Registration, within 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 participating therein, to the Initial Purchasers, to
counsel for the Holders of Registrable Securities participating therein selected
by the Majority Holders (all references to counsel for the Holders of
Registrable Securities in this paragraph being references to such counsel) and
to the underwriter or underwriters of an underwritten offering of Registrable
Securities, if any, make such changes in any such document prior
-18-
to the filing thereof as the Initial Purchasers, the counsel to the Holders of
Registrable Securities participating therein or the underwriter or underwriters
reasonably request and not file any such document in a form to which the Initial
Purchasers, counsel for the Holders of Registrable Securities or any underwriter
shall not have previously been advised and furnished a copy of or to which the
Initial Purchasers, counsel to the Holders of Registrable Securities or any
underwriter shall reasonably object, and make the representatives of the Company
and the Guarantor available for discussion of such document as shall be
reasonably requested by the Initial Purchasers, counsel for the Holders of
Registrable Securities or any underwriter.
(r) in the case of a Shelf Registration, use their reasonable best
efforts to cause all Registrable Securities to be listed on any securities
exchange on which similar debt securities issued by the Company are then listed
if requested by the Majority Holders, or if requested by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any;
(s) in the case of a Shelf Registration, use their reasonable best
efforts to cause the Registrable Securities to be rated by the appropriate
rating agencies, if so requested by the Majority Holders, or if requested by the
underwriter or underwriters of an underwritten offering of Registrable
Securities, if any;
(t) otherwise 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 12 months which shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 promulgated
thereunder;
(u) cooperate and assist in any filings required to be made with the
NASD and, in the case of a Shelf Registration, in the performance of any due
diligence investigation by any underwriter and its counsel (including any
"qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD); and
(v) upon consummation of an Exchange Offer or a Private Exchange,
obtain (i) a customary opinion of counsel to the Company and the Guarantor
addressed to the Trustee for the benefit of all Holders of Registrable
Securities participating in the Exchange Offer or a Private Exchange, and which
includes an opinion that (A) each of the Company and the Guarantor has duly
authorized, executed and delivered the Exchange Securities and the related
indenture, and (B) each of the Exchange Securities and related indenture
constitute legal, valid and binding obligations of each of the Company and the
Guarantor, enforceable against the Company and the Guarantor in accordance with
its respective terms (with customary exceptions) and (ii) an officers'
-19-
certificate containing the certifications substantially similar to those set
forth in Section 5(c) of the Purchase Agreement.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Company and the Guarantor of the
happening of any event or the discovery of any facts, each of the kind described
in Section 3(e)(v) and 3(e)(vi) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to a Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(k) hereof, and, if so directed by the Company and the
Guarantor, such Holder will deliver to the Company and the Guarantor (at their
expense) all copies in such Holder's 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 any of the Registrable Securities covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the underwriter or
underwriters and manager or managers that will manage such offering will be
selected by the Majority Holders of all such Registrable Securities included in
such offering and shall be acceptable to the Company and the Guarantor. 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, lock-up letters and other documents required under the
terms of such underwriting arrangements.
The Company shall be entitled for a period of time not to exceed 30
consecutive days in any one instance or 60 days in the aggregate during any
consecutive twelve-month period, to require that Holders refrain from effecting
any distribution of their Registrable Securities pursuant to the Shelf
Registration Statement if the Company or the Guarantor in its reasonable good
faith judgment determines that, in accordance with its understanding of the
disclosure requirements of applicable securities law, such distribution would
require disclosure of any financing (other than an underwritten secondary
offering of any securities of the Company or the Guarantor), acquisition,
corporate reorganization or other transaction or development involving the
Company, the Guarantor or any of their subsidiaries that is or would be material
to the Company and that, in the reasonable good faith business judgment of the
Company or the Guarantor, such disclosure would not at that time be in the best
interests of the Company or the Guarantor (a "Material Development Election")
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 the
-20-
second paragraph of Section 2.5 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 30 days in the
aggregate. The Company shall, as promptly as practicable, give the Holders
whose Securities are included in the Shelf Registration Statement written notice
of any such Material Development Election. If such Holders have been required
to refrain from disposing of their Registrable Securities as a result of a
Material Development Election, the Company shall, as promptly as practicable
following the determination that the Holders may recommence such sales, notify
such Holders in writing of such determination but in any event no later than the
end of such 30-day period in any one case or 60-day period in the aggregate.
4. INDEMNIFICATION; CONTRIBUTION.
(a) The Company and the Guarantor, jointly and severally, agree to
indemnify and hold harmless the Initial Purchasers, each Holder, each
Participating Broker-Dealer, each Person who participates as an underwriter (any
such Person being an "Underwriter") and each Person, if any, who controls any
Holder or Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment or supplement thereto)
pursuant to which Exchange Securities or Registrable Securities were
registered under the 1933 Act, including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 4(d) below) any such
settlement is effected with the written consent of the Company and the
Guarantor; and
-21-
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by any
indemnified party), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under subparagraph (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company and the
Guarantor by the Holder, Participating Broker-Dealer or Underwriter expressly
for use in a Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto); and PROVIDED FURTHER that this
indemnity agreement shall not, with respect to a Shelf Registration Statement,
if applicable, with respect to any preliminary prospectus, inure to the benefit
of any Underwriter (or to the benefit of any Person controlling such
Underwriter) from whom the Person asserting any such losses, liabilities,
claims, damages or expenses purchased Registrable Securities if such untrue
statement or omission or alleged untrue statement or omission made in a
preliminary prospectus is eliminated or remedies in the Prospectus (as amended
or supplemented if the Company and the Guarantor shall have furnished amendments
or supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such Person at or
prior to the written confirmation of the sale of such Registrable Securities to
such Person.
(b) Each Holder severally, but not jointly, agrees to indemnify and
hold harmless the Company, the Guarantor, the Initial Purchasers, each
Underwriter and the other selling Holders, and each of their respective
directors and officers, and each Person, if any, who controls the Company, the
Guarantor, the Initial Purchasers, any Underwriter or any other selling Holder
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 4(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Shelf Registration Statement (or any amendment thereto) or any
Prospectus included therein (or any amendment or supplement thereto) in reliance
upon and in conformity with written information with respect to such Holder
furnished to the Company by such Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or such Prospectus (or any
amendment or supplement thereto); PROVIDED, HOWEVER, that no such Holder shall
be liable for any claims hereunder in excess
-22-
of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure so to notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. 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 other the indemnifying party may designate in such action or
proceeding and shall pay the fees and expenses 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 contrary, (ii) the
indemnifying party has failed within a reasonable time to retain counsel
reasonably satisfactory to the indemnified party or (iii) the named parties in
any such proceeding (including 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 no event shall the indemnifying party or parties be liable for
the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 4 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding 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) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such
-23-
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement unless the
indemnifying party in good faith shall be contesting the reasonableness of such
fees and expenses (but only to the extent so contested) or the entitlement of
the indemnified party to indemnification under the terms of this Section. No
indemnifying person shall, without the prior written consent of the indemnified
person, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified person is or could have been a party and indemnity
could have been sought hereunder by such indemnified person, unless such
settlement includes an unconditional release of such indemnified person from all
liability on claims that are the subject matter of such proceeding.
(e) If the indemnification provided for in this Section 4 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect
the relative fault of the Company and the Guarantor on the one hand and the
Initial Purchasers, the Holders, the Participating Broker-Dealers and/or the
Underwriters each on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative fault of the Company and the Guarantor on the one hand and the
Initial Purchasers, the Holders, the Participating Broker-Dealers and/or the
Underwriters each on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company and the Guarantor, the Holders, the
Participating Broker-Dealers and/or the Underwriters or the Initial Purchasers
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, the Guarantor, the Initial Purchasers, the Holders, the
Participating Broker-Dealers and/or the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 4 were determined by
pro rata allocation (even if the Initial Purchasers, the Holders, the
Participating Broker-Dealers and/or the Underwriters 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 above in this Section 4. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 4 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any
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governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 4, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities sold by it were offered exceeds the amount
of any damages which such Initial Purchaser 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls an
Initial Purchaser, Holder Participating Broker-Dealer or Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as such Initial Purchaser or Holder, and each
director of the Company and such Guarantor, as the case may be, and each Person,
if any, who controls the Company and such Guarantor, as the case may be, within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Initial Purchasers'
respective obligations to contribute pursuant to this Section 4 are several in
proportion to the principal amount of Securities set forth opposite their
respective names in Schedules I-A and I-B to the Purchase Agreement and not
joint.
5. MISCELLANEOUS.
5.1 Rule 144 and Rule 144A. For so long as the Guarantor is subject
to the reporting requirements of Section 13 or 15 of the 1934 Act, the Company
and the Guarantor covenant that the Guarantor will file the reports required to
be filed by it under the 1933 Act and Section 13(a) or 15(d) of the 1934 Act and
the rules and regulations adopted by the SEC thereunder. If the Guarantor
ceases to be so required to file such reports, the Company and the Guarantor
covenant that the Guarantor will upon the request of any Holder of Registrable
Securities (a) make publicly available such information as is necessary to
permit sales pursuant to Rule 144 under the 1933 Act, (b) deliver such
information to a prospective purchaser as is necessary to permit sales pursuant
to Rule 144A under the 1933 Act to the extent required by the securities laws,
and (c) 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 1933 Act within
the limitation of the exemptions provided by (i) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, (ii) Rule 144A under the 1933 Act,
as such Rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Upon the
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request of any Holder of Registrable Securities, the Company and the Guarantor
will deliver to such Holder a written statement as to whether they have complied
with such requirements.
5.2 NO INCONSISTENT AGREEMENTS. The Company and the Guarantor have
not entered into, and the Company and the Guarantor will not 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 the rights granted to the holders of
the Company's and the Guarantor's other issued and outstanding securities under
any such agreements.
5.3 AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company and the Guarantor have obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or departure.
5.4 NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder to
the Company and the Guarantor by means of a notice given in accordance with the
provisions of this Section 5.4, which address initially is the address set forth
in the Purchase Agreement with respect to the Initial Purchasers; and (b) if to
the Company and the Guarantor, initially at the Company's address set forth in
the Purchase Agreement, and thereafter at such other address of which notice is
given in accordance with the provisions of this Section 5.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; 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 under the
Indenture, at the address specified in such Indenture.
5.5 SUCCESSOR 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
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Holders; PROVIDED that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Registrable Securities in violation of the
terms 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.
5.6 THIRD PARTY BENEFICIARIES. The Initial Purchasers (even if the
Initial Purchasers are not Holders of Registrable Securities) shall be third
party beneficiaries to the agreements made hereunder between the Company and the
Guarantor, on the one hand, and the Holders, on the other hand, and shall have
the right to enforce such agreements directly to the extent they deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made under this Registration Rights Agreement
between the Company and the Guarantor, 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 hereunder.
5.7. SPECIFIC ENFORCEMENT. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Company and the Guarantor
acknowledge that any failure by the Company and the Guarantor to comply with
their obligations under Sections 2.1 through 2.4 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 would 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 and the Guarantor's obligations under
Sections 2.1 through 2.4 hereof.
5.8. RESTRICTION ON RESALES. Until the expiration of two years after
the original issuance of the Securities and the Guarantee, the Company and the
Guarantor will not, and will cause their "affiliates" (as such term is defined
in Rule 144(a)(1) under the ▇▇▇▇ ▇▇▇) not to, resell any Securities and
Guarantee which are "restricted securities" (as such term is defined under Rule
144(a)(3) under the ▇▇▇▇ ▇▇▇) that have been reacquired by any of them and shall
immediately upon any purchase of any such Securities and Guarantees submit such
Securities and Guarantees to the Trustee for cancellation.
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5.9 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.
5.10 HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.12 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 unenforceable, 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.
5.13 JURISDICTIONAL MATTERS. Each of the Company and the Guarantor
(i) agrees that any legal suit, action or proceeding brought by any party to
enforce any rights under or with respect to this Agreement or any other document
in respect thereof or the transactions contemplated hereby or thereby may be
instituted in any state or federal court in The City of New York, State of New
York, U.S.A., (ii) irrevocably waives to the fullest extent permitted by law any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding, (iii) irrevocably waives to the fullest extent
permitted by law any claim that and agrees not to claim or plead in any court
that any such action, suit or proceeding brought in such court has been brought
in an inconvenient forum and (iv) irrevocably submits to the non-exclusive
jurisdiction of any such court in any such suit, action or proceeding or for
recognition and enforcement of any judgment in respect thereof.
Each of the Company and the Guarantor hereby irrevocably and
unconditionally designates and appoints CT Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇. (and any successor entity), as its authorized
agent to receive and forward on its behalf service of any and all process which
may be served in any such suit, action or proceeding in any such court and
agrees that service of process upon CT Corporation shall be deemed in every
respect effective service of process upon it in any such suit, action or
proceeding and shall be taken and held to be valid personal service upon it.
Said designation and appointment shall be irrevocable. Nothing in this Section
5.13 shall affect the right of Initial
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Purchasers, their affiliates or any indemnified party to serve process in any
manner permitted by law or limit the right of the Initial Purchasers, their
affiliates or any indemnified party to bring proceedings against the Company or
the Guarantor in the courts of any jurisdiction or jurisdictions. Each of the
Company and the Guarantor further agrees to take any and all action, including
the execution and filing of any and all such documents and instruments, as may
be necessary to continue such designation and appointment of CT Corporation in
full force and effect so long as the Securities and the Guarantees are
outstanding but in no event for a period longer than five years from the date of
this Agreement. Each of the Company and Guarantor hereby irrevocably and
unconditionally authorizes and directs CT Corporation to accept such service on
its behalf. If for any reason CT Corporation ceases to be available to act as
such, each of the Company and Guarantor agrees to designate a new agent in New
York City on the terms and for the purposes of this provision reasonably
satisfactory to the Underwriters.
To the extent that either the Company or the Guarantor has or
hereafter may acquire any immunity from jurisdiction of any court (including,
without limitation, any court in the United States, the State of New York,
Luxembourg, Bermuda or any political subdivision thereof) or from any legal
process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property or assets, this Agreement, or any other documents or actions to
enforce judgments in respect of any thereof, it hereby irrevocably waives such
immunity, and any defense based on such immunity, in respect of its obligations
under the above-referenced documents and the transactions contemplated thereby,
to the extent permitted by law.
5.14. JUDGMENT CURRENCY. If pursuant to a judgment or order being
made or registered against the Company or the Guarantor, any payment under or in
connection with this Agreement to a Person is made or satisfied in a currency
(the "Judgment Currency") other than in United States dollars then, to the
extent that the payment (when converted into United States dollars at the rate
of exchange on the date of payment or, if it is not practicable for such Person
to purchase United States dollars with the Judgment Currency on the date of
payment, at the rate of exchange as soon thereafter as it is practicable for it
to do so) actually received by such Person falls short of the amount due under
the terms of this Agreement, the Company or the Guarantor shall, to the extent
permitted by law, as a separate and independent obligation, indemnify and hold
harmless such Person against the amount of such short fall and such indemnity
shall continue in full force and effect notwithstanding any such judgment or
order as aforesaid. For the purpose of this Section, "rate of exchange" means
the rate at which the Person is able on the relevant date to purchase United
States dollars with the Judgment Currency and shall take into account any
premium and other costs of exchange.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
TYCO INTERNATIONAL GROUP S.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
TYCO INTERNATIONAL LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
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Confirmed and accepted as
of the date first above
written:
▇▇▇▇▇▇ BROTHERS INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
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