EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of January 30, 1996, among XXXXXX & XXXXX CORPORATION, a corporation
organized under the laws of the State of New Jersey (the "Company"), and XXXXXXX
XXXXX & CO., XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED and X.X. XXXXXX
SECURITIES INC., as representatives for the initial purchasers (the "Initial
Purchasers") set forth in Schedule I to the Purchase Agreement dated January 25,
1996 among the Company and the Initial Purchasers (the "Purchase Agreement").
This Agreement is made pursuant to the Purchase Agreement, which provides
for the sale by the Company to the Initial Purchasers of an aggregate of
$150,000,000 principal amount of the Company's 6 1/2% Notes due January 15, 2006
(the "Initial Securities"). In order to induce the Initial Purchasers to enter
into the Purchase Agreement, the Company 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
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defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
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to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
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from time to time.
"Closing Date" shall mean the Closing Time as defined in the Purchase
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Agreement.
"Company" shall have the meaning set forth in the preamble and also
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includes the Company's successors.
"Depositary" shall mean the Depositary Trust Company, or any other
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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
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Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
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Act effected pursuant to Section 2(a) hereof.
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"Exchange Offer Registration Statement" shall mean an exchange offer
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registration statement on Form S-4 (or, if applicable, on another
appropriate form) under the Securities Act, and all amendments and
supplements to such registration statement, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Exchange Securities" shall mean 6 1/2% Notes due January 30, 2006
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issued by the Company under the Indenture containing terms identical to the
Initial Securities (except that (i) interest thereon shall accrue from the
last date on which interest was paid on the Initial Securities or, if no
such interest has been paid, from the date of their original issue, (ii)
the transfer restrictions thereon shall be eliminated and (iii) certain
provisions relating to an increase in the stated rate of interest thereon
shall be eliminated), to be offered to Holders of Initial Securities in
exchange for Initial Securities pursuant to the Exchange Offer.
"Holders" shall mean the Initial Purchasers, for so long as they own
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any Registrable Securities, and each of their successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Securities under the Indenture.
"Indenture" shall mean the Indenture relating to the Initial
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Securities, dated as of January 15, 1992, between the Company and First
Trust of New York, National Association, as Trustee (successor trustee to
Xxxxxx Guaranty Trust Company of New York) (the "Trustee) as supplemented
by the Officers' Certificate, dated as of January 30, 1996, between the
same parties, as such Indenture as so supplemented may be amended from time
to time in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble.
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"Initial Securities" shall have the meaning set forth in the preamble.
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"Majority Holders" shall mean the Holders of a majority of the
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aggregate principal amount of outstanding Registrable Securities; 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 shall be disregarded in determining whether such
consent or approval was given by the Holders of such required percentage or
amount.
"Xxxxxxx Xxxxx" shall mean Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
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Incorporated, on behalf of the Initial Purchasers.
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"Officers' Certificate" shall mean the Officers' Certificate of the
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Company, dated as of January 30, 1996, executed pursuant to Section 201 and
301 of the Indenture, establishing the terms of the Notes and the Exchange
Securities.
"Person" shall mean an individual, partnership, corporation, trust or
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unincorporated organization, or a government or agency or political
subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
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Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
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"Registrable Securities" shall mean the Initial Securities; provided,
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however, that the Initial Securities shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such Initial
Securities shall have been declared effective under the 1933 Act and such
Initial Securities shall have been disposed of pursuant to such
Registration Statement, (ii) such Initial Securities shall have been sold
to the public pursuant to Rule 144 (or any similar provision then in force,
but not Rule 144A) under the 1933 Act, (iii) such Initial Securities shall
have ceased to be outstanding or (iv) such Initial Securities have been
exchanged for Exchange Securities upon consummation of the Exchange Offer.
"Registration Expenses" shall mean any and all expenses incident to
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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. ("NASD") registration and filing fees, (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), (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 rating agency fees, (v) all fees
and expenses incurred in connection with the listing, if any, of any of the
Registrable Securities on any securities exchange or exchanges, (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
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performance and compliance, (vii) the fees and expenses of the Trustee, and
any escrow agent or custodian, and (viii) any fees and disbursements of the
underwriters customarily required to be paid by issuers or sellers of
securities and the reasonable fees and expenses of any special experts
retained by the Company in connection with any Registration Statement, but
excluding fees of counsel to the underwriters or the Holders and
underwriting discounts and commissions and transfer taxes, if any, relating
to the sale or disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
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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.
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"Shelf Registration" shall mean a registration effected pursuant to
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Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
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statement of the Company pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the Registrable Securities on an appropriate
form under Rule 415 under the 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 Initial
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Securities under the Indenture.
2. Registration Under the 1933 Act.
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(a) Exchange Offer Registration. To the extent not prohibited by any
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applicable law or applicable interpretation of the Staff of the SEC (as
determined in the reasonable discretion of the Company), the Company shall use
its best efforts (A) to file within 45 days after the Closing Date an Exchange
Offer Registration Statement covering the offer by the Company to the Holders to
exchange all of the Registrable Securities for Exchange Securities, (B) to cause
such Exchange Offer Registration Statement to be declared effective by the SEC
within 150 days after the Closing Date, (C) to cause such Registration Statement
to remain effective until the closing of the Exchange Offer and (D) to
consummate the Exchange Offer within 180 days following the Closing Date. The
Exchange Securities will be issued under the Indenture. Upon the effectiveness
of the Exchange Offer Registration Statement, the Company shall promptly
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commence the Exchange Offer, it being the objective of such Exchange Offer to
enable each Holder (other than Participating Broker-Dealers (as defined in
Section 3(f)) eligible and electing to exchange Registrable Securities for
Exchange Securities (assuming that such Holder is not an affiliate of the
Company within the meaning of Rule 405 under the 1933 Act, acquires the Exchange
Securities in the ordinary course of such Holder's business and has no
arrangements or understandings with any person to participate in the Exchange
Offer for the purpose of distributing the Exchange Securities) to trade such
Exchange Securities from and after their receipt without any limitations or
restrictions under the registration provisions of the 1933 Act and without
material restrictions under the registration and qualification provisions of the
securities laws of a substantial proportion of the several states of the United
States.
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 30 days after
the date notice thereof is mailed to the Holders (or longer if required by
applicable law);
(iii) use the services of the Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Registrable Securities at
any time prior to the close of business, New York City time, on the last
business day on which the Exchange Offer shall remain open, by sending to
the institution specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Registrable Securities delivered for exchange, and a statement
that such Holder is withdrawing his election to have such Initial
Securities exchanged; and
(v) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the Company
shall:
(i) accept for exchange Registrable Securities duly tendered and
not validly withdrawn pursuant to the Exchange Offer in accordance with the
terms of the Exchange Offer Registration Statement and the letter of
transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so accepted for
exchange by the Company; and
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(iii) cause the Trustee promptly to authenticate and deliver Exchange
Securities to each Holder of Registrable Securities equal in amount to 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
its original issue. The Exchange Offer shall not be subject to any conditions,
other than those that are customary for underwritten offerings of securities
including, without limitation, (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 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 that, in the
Company's judgment, would reasonably be expected to impair the ability of the
Company to proceed with the Exchange Offer, (iv) that there shall not have been
adopted or enacted any law, statute, rule or regulation which, in the Company's
judgment, would reasonably be expected to impair the ability of the Company to
proceed with the Exchange Offer, (v) that there shall not have been declared by
United States federal, New York or Tennessee state authorities a banking
moratorium that, in the Company's judgment, would reasonably be expected to
impair the ability of the Company to proceed with the Exchange Offer, (vi) that
trading on the New York Stock Exchange or generally in the United States over-
the-counter market shall not have been suspended by order of the Commission or
any other governmental authority, which, in the Company's judgment, would
reasonably be expected to impair the ability of the Company to proceed with the
Exchange Offer and (vii) that each Holder of Registrable Securities (other than
Participating Broker-Dealers) who wishes to exchange such Registrable Securities
for Exchange Securities in the Exchange Offer shall have represented that (A) it
is not an affiliate of the Company, (B) any Exchange Securities to be received
by it were acquired in the ordinary course of business and (C) at any time of
the commencement of the Exchange Offer, it has no arrangement with any person to
participate in the distribution (within the meaning of the 0000 Xxx) of the
Exchange Securities and shall have made such other representations as may be
reasonably necessary under applicable SEC rules, regulations or interpretations
to render available the use of Form S-4 or another appropriate form under the
1933 Act; provided, however, that none of the foregoing conditions shall relieve
the Company of its obligations under this Agreement or effect any increase in
the interest rate borne by the Initial Securities pursuant to this Agreement. To
the extent permitted by law, the Company shall inform Xxxxxxx Xxxxx of the names
and addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchasers shall have the right to contact such Holders and otherwise facilitate
the tender of Registrable Securities in the Exchange Offer.
For greater certainty, the Company's obligation to use its best efforts to
make the Exchange Offer hereunder terminates at the close of business on the
180th day following the Closing Date.
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(b) Shelf Registration. (i) If the Company determines in its
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reasonable discretion that, because of any change in law or applicable
interpretations thereof by the Staff of the SEC, it is not permitted to effect
the Exchange Offer as contemplated by Section 2(a) hereof, or (ii) if for any
other reason the Exchange Offer Registration Statement is not declared effective
within 150 days following the Closing Date, or (iii) upon the request of Xxxxxxx
Xxxxx (with respect to any Registrable Securities which the Initial Purchasers
acquired directly from the Company) following the consummation of the Exchange
Offer if any Initial Purchaser shall hold Registrable Securities which it
acquired directly from the Company and if such Initial Purchaser is not
permitted, in the opinion of counsel to the Initial Purchasers, pursuant to
applicable law or applicable interpretation of the Staff of the SEC to
participate in the Exchange Offer, the Company shall, at its cost:
(A) as promptly as practicable, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the Registrable
Securities by the Holders from time to time in accordance with the methods
of distribution elected by the Majority Holders of such Registrable
Securities and set forth in such Shelf Registration Statement, and use its
best efforts to cause such Shelf Registration Statement to be declared
effective by the SEC by the 180th day after the Closing Date (or promptly
in the event of a request by Xxxxxxx Xxxxx pursuant to clause (iii) above).
In the event that the Company is required to file a Shelf Registration
Statement upon the request of Xxxxxxx Xxxxx pursuant to clause (iii) above,
the Company shall file and use its reasonable best efforts to have declared
effective by the SEC both an Exchange Offer Registration Statement pursuant
to Section 2(a) with respect to all Registrable Securities and a Shelf
Registration Statement (which may be a combined Registration Statement with
the Exchange Offer Registration Statement) with respect to offers and sales
of Registrable Securities held by such Holder or the Initial Purchasers
after completion of the Exchange Offer;
(B) use its 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 three years from the date
the Shelf Registration Statement is declared effective by the SEC (or one
year from the date the Shelf Registration Statement is declared effective
if such Shelf Registration Statement is filed upon the request of Xxxxxxx
Xxxxx pursuant to clause (iii) above) or such shorter period which will
terminate when all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement; and
(C) notwithstanding any other provisions hereof, use its 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 requirements of 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
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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 therein, in
light of the circumstances under which they were made, not misleading;
provided, however, that, with respect to clauses (ii) and (iii), the
Company shall not assume liability for statements in or omissions from the
Registration Statement made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Holders
expressly for use therein.
The Company further agrees, if necessary, to supplement or amend the Shelf
Registration Statement if reasonably requested by the Majority Holders with
respect to information relating to the Holders or by Xxxxxxx Xxxxx with respect
to information relating to the Initial Purchasers if such Shelf Registration
Statement is filed upon the request of Xxxxxxx Xxxxx pursuant to clause (iii)
above and otherwise as required by Section 3(b) below, to use all reasonable
efforts to cause any such amendment to become effective and such Shelf
Registration to become usable as soon as thereafter practicable and to furnish
to the Holders of Registrable Securities or the Initial Purchasers, as the case
may be, copies of any such supplement or amendment promptly after its being used
or filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in
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connection with the registration pursuant to Section 2(a) or 2(b) and, in the
case of any Shelf Registration Statement, will reimburse the Holders and/or, if
such Shelf Registration Statement is filed upon the request of Xxxxxxx Xxxxx
pursuant to clause 2(b)(iii) above, the Initial Purchasers for the reasonable
fees and disbursements of one firm or counsel designated in writing by the
Majority Holders to act as counsel for the Holders of the Registrable Securities
in connection with such Shelf Registration Statement and/or one firm or counsel
designated in writing by Xxxxxxx Xxxxx to act as counsel for the Initial
Purchasers in connection with such Shelf Registration Statement, and, in the
case of an Exchange Offer Registration Statement, will reimburse the Holders, as
applicable, for the reasonable fees and disbursements of counsel in connection
therewith. Each Holder or Initial Purchaser, as the case may be, shall pay all
expenses of its counsel other than as set forth in the preceding sentence,
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's or Initial Purchaser's, as the case may
be, Registrable Securities pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement.
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(i) The Company will be deemed not to have used its 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
voluntarily takes any action that 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
unless (A) such action is required (in
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the Company's reasonable opinion) by applicable law or (B) such action
is taken by the Company in good faith and for valid business reasons
(not including avoidance of the Company's obligations hereunder),
including, without limitation, the acquisition or divestiture of
assets, so long as the Company promptly complies with the requirements
of Section 3(k) hereof, if applicable.
(ii) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to
Section 2(b) hereof 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 a Registration Statement is interfered with by
any stop order, injunction or other order or requirement of the SEC or
any other governmental agency or court, such Registration Statement
will be deemed not to have been effective during the period of such
interference, until the offering of Registrable Securities pursuant to
such Registration Statement may legally resume.
(e) Increase in Interest Rate. In the event that (i) the Exchange
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Offer Registration Statement is not filed with the Commission on or prior to the
45th calendar day after the Closing Date, (ii) the Exchange Offer Registration
Statement is not declared effective on or prior to the 150th calendar day after
the Closing Date or (iii) the Exchange Offer is not consummated or a Shelf
Registration Statement with respect to the Registrable Securities is not
declared effective on or prior to the 180th calendar day after the Closing Date,
the interest rate borne by the Initial Securities shall be increased by .50% per
annum following such 45th day period in the case of clause (i) above, such 150
day period in the case of clause (ii) above, or such 180 day period in the case
of clause (iii) above; provided that the aggregate increase in such interest
rate will in no event exceed .50% per annum. Upon (x) the filing of the
Exchange Offer Registration Statement after the 45 day period described in
clause (i) above, (y) the effectiveness of the Exchange Offer Registration
Statement after the 150 day period described in clause (ii) above or (z) the
consummation of the Exchange Offer or the effectiveness of a Shelf Registration
Statement, as the case may be, after the 180 day period described in clause
(iii) above, the interest rate borne by the Initial Securities from the date of
such filing, effectiveness or consummation, as the case may be, will be reduced
to the original interest rate.
(f) Specific Enforcement. Without limiting the remedies available to
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the Initial Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its respective obligations under Section
2(a) and Section 2(b) hereof may result in material irreparable injury to the
Initial Purchasers or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, the Initial Purchasers or any Holder may
obtain such relief as may be required to specifically enforce the Company's
obligations under Section 2(a) and Section 2(b) hereof.
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3. Registration Procedures. In connection with the obligations of the
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Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement, within
the time period specified in Section 2, on the appropriate form under the
1933 Act, which form (i) shall be selected by the Company, (ii) shall, in
the case of a Shelf Registration, be available for the sale of the
Registrable Securities by the selling Holders thereof and (iii) shall
comply as to form in all material respects with the requirements of the
applicable form and include or incorporate by reference all financial
statements required by the SEC to be filed therewith, and use its best
efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under
applicable law to keep such Registration Statement effective for the
applicable period; cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule
424 under the 1933 Act; and comply with the provisions of the 1933 Act with
respect to the disposition of all securities covered by each Registration
Statement during the applicable period in accordance with the intended
method or methods of distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities, at least 10 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 set forth therein;
and (ii) furnish to each Holder of Registrable Securities, to counsel for
the Initial Purchasers, to counsel for the Holders and to each underwriter
of an underwritten offering of Registrable Securities, if any, without
charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other
documents as such Holder or underwriter may reasonably request, including
financial statements and schedules and, if such Holder or underwriter so
requests, all exhibits (including those incorporated by reference), in
order to facilitate the public sale or other disposition of the Registrable
Securities; and (iii) subject to the last paragraph of Section 3, 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, provided such use
complies with all applicable laws and regulations;
(d) use its best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws or such
jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement and each underwriter of an
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underwritten offering of Registrable Securities shall reasonably request by
the time the applicable Registration Statement is declared effective by the
SEC, to cooperate with the Holders in connection with any filings required
to be made with the NASD, and do any and all other acts and things which
may be reasonably necessary or advisable to enable such Holder to
consummate the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that the Company shall
not be required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d) or (ii) take any action which would
subject it to general service of process or taxation in any such
jurisdiction if it is not then so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, Xxxxxxx Xxxxx and counsel for the Initial
Purchasers promptly and, if requested by such Holder or counsel, confirm
such advice in writing promptly (i) when a Registration Statement has
become effective and when any post-effective amendments and supplements
thereto become effective, (ii) of any request by the SEC or any state
securities authority for post-effective amendments and supplements to a
Registration Statement and Prospectus or for additional information after
the Registration Statement has become effective, (iii) of the issuance by
the SEC or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company contained in any underwriting agreement, securities sales agreement
or other similar agreement, if any, relating to such offering cease to be
true and correct in all material respects, (v) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose, (vi) of
the happening of any event or the discovery of any facts during the period
a Shelf Registration Statement is effective 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, in the light of the circumstances under which they
were made, and (vii) of any determination by the Company that a post-
effective amendment to a Registration Statement would be appropriate;
(f) (A) in the case of the Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution" section
covering the use of the Prospectus included in the Exchange Offer
Registration Statement by broker-dealers who have exchanged their
Registrable Securities for Exchange Securities for the resale of such
Exchange Securities, (ii) furnish to each broker-dealer who desires to
participate in the Exchange Offer, without charge, as many copies of
each Prospectus included in the Exchange Offer Registration Statement,
including any preliminary prospectus, and any amendment or supplement
thereto,
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as such broker-dealer may reasonably request, (iii) include in the
Exchange Offer Registration Statement a statement that any broker-
dealer who holds Registrable Securities acquired by it for its own
account as a result of market-making activities or other trading
activities (a "Participating Broker-Dealer"), and who receives
Exchange Securities for Registrable Securities pursuant to the
Exchange Offer, may be a statutory underwriter and must deliver a
prospectus meeting the requirements of the 1933 Act in connection with
any resale of such Exchange Securities, (iv) subject to the last
paragraph of Section 3, hereby consent to the use of the Prospectus
forming part of the Exchange Offer Registration Statement or any
amendment or supplement thereto, by any broker-dealer in connection
with the sale or transfer of the Exchange Securities covered by the
Prospectus or any amendment or supplement thereto, and (v) include in
the transmittal letter or similar documentation to be executed by an
exchange offeree in order to participate in the Exchange Offer (x) the
following provision:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to
engage in, a distribution of Exchange Securities. If the
undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Registrable
Securities, it represents that the Registrable Securities to
be exchanged for Exchange Securities were acquired by it as a
result of market-making activities or other trading activities
and acknowledges that it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of
such Exchange Securities pursuant to the Exchange Offer;
however, by so acknowledging and by delivering a prospectus,
the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the 1933 Act"; and
(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in subclause (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
(B) to the extent any Participating Broker-Dealer participates
in the Exchange Offer, the Company shall use its best efforts to cause
to be delivered at the request of an entity representing the
Participating Broker-Dealers (which entity shall be Xxxxxxx Xxxxx,
unless it elects not to act as such representative) only one, if any,
"cold comfort" letter with respect to the Prospectus in the form
existing on the last date for which exchanges are accepted pursuant to
the Exchange Offer and with respect to each subsequent amendment or
supplement, if any, effected during the period specified in clause (C)
below; and
12
(C) to the extent any Participating Broker-Dealer participates
in the Exchange Offer, the Company shall use its best efforts to
maintain the effectiveness of the Exchange Offer Registration
Statement for a period of 90 days following the closing of the
Exchange Offer; and
(D) the Company shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement as
would otherwise be contemplated by Section 3(b), or take any other
action as a result of this Section 3(f), for a period exceeding 90
days after the closing of the Exchange Offer (as such period may be
extended by the Company) and Participating Broker-Dealers shall not be
authorized by the Company to, and shall not, deliver such Prospectus
after such period in connection with resales contemplated by this
Section 3.
(g) (A) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (B) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Securities and/or, in the event that
such Shelf Registration has been undertaken at the request of Xxxxxxx Xxxxx
in accordance with clause 2(b)(iii), counsel for the Initial Purchasers
copies of any request by the SEC or any state securities authority for
amendments or supplements to a Registration Statement and Prospectus or for
additional information.
(h) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement as soon as
practicable and provide immediate notice to each Holder and Xxxxxxx Xxxxx
of the withdrawal of any such order;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities and their counsel, and each Initial Purchaser and
counsel for the Initial Purchasers, without charge, at least one conformed
copy of each Registration Statement and any post-effective amendment
thereto (without documents incorporated therein by reference or exhibits
thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates, if any, representing Registrable Securities to be
sold and not bearing any restrictive legends; and cause such Registrable
Securities to be in such denominations (consistent with the provisions of
the Indenture) and registered in such names as the selling Holders or the
underwriters, if any, may reasonably request at least two 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 Section
3(e)(vi) hereof, use its best efforts to prepare a supplement or post-
effective amendment to a Registration Statement or the
13
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not contain
at the time of such delivery any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading,
provided, however, that notwithstanding the above, if any event
contemplated above occurs and the Board of Directors determines in its good
faith judgment that the disclosure of such event at such time would
materially adversely affect the interests of the Company, the Company shall
not be required to amend or supplement the Shelf Registration Statement,
any related Prospectus or any document incorporated therein by reference
until the earliest to occur of (i) such time as public disclosure is
otherwise made, (ii) the Board of Directors of the Company determines in
its good faith judgment that the disclosure in the Prospectus of any event
described above would no longer materially adversely affect the interests
of the Company or that such disclosure is not necessary, or (iii) 30 days
after the occurrence of such event. The Company agrees to notify each
Holder to suspend use of the Prospectus as promptly as practicable after
the occurrence of such an event, and each Holder hereby agrees to suspend
use of the Prospectus until the Company has amended or supplemented the
Prospectus to correct such misstatement or omission. At such time as such
public disclosure is otherwise made or the Company determines that such
disclosure is not necessary, in each case to correct any misstatement of a
material fact or to include any omitted material fact, the Company agrees
promptly to notify each Holder of such determination and to furnish each
Holder such numbers of copies of the Prospectus, as amended or
supplemented, as such Holder may reasonably request;
(l) obtain 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 certificates
for the Exchange Securities or the Registrable Securities, as the case may
be, in a form eligible for deposit with the Depositary;
(m) (i) cause the Indenture to continue to be qualified under the
Trust Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Securities, or Registrable Securities, as the
case may be and cooperate with the Trustee and the Holders to effect such
changes to the Indenture as may be required for the Indenture to continue
to be so qualified in accordance with the terms of the TIA and (ii)
execute, and use its 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;
(n) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions (including those reasonably requested by the Majority
Holders) in order to facilitate the disposition
14
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 customary opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriters, if any, and the holders of a majority in principal
amount of the Registrable Securities being sold) addressed to each
selling Holder and the underwriters, if any, covering the matters
customarily covered in opinions requested in sales of securities or
underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the
underwriters, if any, and will use best efforts to have such letters
addressed to the selling Holders of Registrable Securities, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters to underwriters in
connection with similar underwritten offerings;
(iv) enter into a securities sales agreement with the Holders
and an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose of
soliciting purchases of Registrable Securities, which agreement shall
be in form, substance and scope customary for similar offerings;
(v) if an underwriting agreement is entered into, cause the
same to set forth indemnification provisions and procedures
substantially equivalent to the indemnification provisions and
procedures set forth in Section 5 hereof with respect to the
underwriters and all other parties to be indemnified pursuant to said
Section; and
(vi) deliver such other documents and certificates as may be
reasonably requested and as are customarily delivered in similar
offerings.
The above shall be done at (i) the effectiveness of such Registration
Statement (and, if appropriate, each post-effective amendment thereto) and
(ii) each closing under any underwriting or similar agreement as and to the
extent required thereunder. In the case
15
of any underwritten offering, the Company shall provide written notice to
the Holders of all Registrable Securities of such underwritten offering at
least 30 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 following in order to participate in such underwritten offering;
(o) in the case of a Shelf Registration and subject to the prior
receipt by the Company of undertakings to preserve the confidentiality of
any information disclosed by the Company pursuant hereto in form and
substance reasonably satisfactory to the Company, make reasonably available
for inspection by representatives of the Holders of the Registrable
Securities and any underwriters participating in any disposition pursuant
to a Shelf Registration Statement and any counsel or accountant retained by
such Holders or underwriters, all reasonably requested and relevant
financial and other records, pertinent corporate documents and properties
of the Company reasonably requested by any such persons, and cause the
respective officers, directors and employees and any other agents of the
Company to supply all relevant information reasonably requested by any such
representative, underwriter, special counsel or accountant in connection
with a Registration Statement;
(p) (i) a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any
amendment to an Exchange Offer Registration Statement or amendment or
supplement to a Prospectus, provide copies of such document to the Initial
Purchasers, and use its reasonable best efforts to reflect such changes in
any such document prior to the filing thereof as Xxxxxxx Xxxxx or counsel
for the Initial Purchasers may reasonably request; (ii) in the case of a
Shelf Registration, a reasonable time prior to filing any Shelf
Registration Statement, any Prospectus forming a part thereof, any
amendment to such Shelf Registration Statement or amendment or supplement
to such Prospectus, provide copies of such document to the Holders of
Registrable Securities, to Xxxxxxx Xxxxx, to counsel on behalf of the
Holders and to the underwriter or underwriters of an underwritten offering
of Registrable Securities, if any, and use its reasonable best efforts to
reflect such changes in any such document prior to the filing thereof as
the Holders of Registrable Securities, Xxxxxxx Xxxxx on behalf of such
Holders, their counsel and any underwriter may reasonably request within a
reasonable period following of their receipt of such document; and (iii)
cause the representatives of the Company to be available for discussion of
such document as shall be reasonably requested by the Holders of
Registrable Securities, Xxxxxxx Xxxxx on behalf of such Holders or any
underwriter and shall not at any time make any filing of any such document
of which such Holders, Xxxxxxx Xxxxx on behalf of such Holders, their
counsel or any underwriter shall not have previously been advised and
furnished a copy or to
16
which such Holders, Xxxxxxx Xxxxx on behalf of such Holders, their counsel
or any underwriter shall reasonably object;
(q) in the case of a Shelf Registration, use its best efforts to
cause the Registrable Securities to be rated with the appropriate rating
agencies, if so requested by the Majority Holders or by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any,
unless the Registrable Securities are already so rated;
(r) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC and make available to its security
holders, as soon as reasonably practicable after the effective date of the
applicable Registration Statement, an earnings statement covering at least
12 months which shall satisfy the provisions of Section 11(a) of the 1933
Act and Rule 158 thereunder; and
(s) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter and its counsel, subject to the prior receipt by the Company of
undertakings to preserve the confidentiality of any information disclosed
by the Company pursuant hereto in form and substance reasonably
satisfactory to the Company.
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Securities to furnish to the Company such information
regarding such Holder and the proposed distribution by such Holder of such
Registrable Securities as the Company may from time to time reasonably request
in writing.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event or the
discovery of any facts, each of the kind described in Section 3(e)(ii)-(vi)
hereof, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to such Shelf Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(k) hereof or until it is advised in writing by the Company that the
use of the Prospectus may be resumed, and, if so directed by the Company, such
Holder will deliver to the Company (at such Holder's expense) all copies in its
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Securities current at the time of
receipt of such notice. If the Company shall give any such notice to suspend the
disposition of Registrable Securities pursuant to a Shelf Registration Statement
as a result of the happening of any event or the discovery of any facts, each of
the kind described in Section 3(e)(vi) hereof, the Company shall be deemed to
have used its best efforts to keep the Shelf Registration Statement effective
during such period of suspension provided that the Company shall use its best
efforts to file and have declared effective (if an amendment) as soon as
practicable an amendment or supplement to the Shelf Registration Statement and
shall extend the period during which the Registration Statement shall be
maintained effective pursuant to this Agreement by the number of
17
days during the period from and including the date of the giving of such notice
to and including the date when the Holders shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions.
4. Underwritten Registrations. If any of the Registrable Securities
--------------------------
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Majority Holders of such Registrable
Securities included in such offering and shall be reasonably acceptable to the
Company.
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Securities on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
5. Indemnification and Contribution.
--------------------------------
(a) The Company shall indemnify and hold harmless each Initial
Purchaser, each Holder, including Participating Broker-Dealers, each underwriter
who participates in an offering of Registrable Securities, their respective
affiliates, their respective directors, officers and employees and each Person,
if any, who controls any of such parties within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all losses, liabilities, claims, damages
and expenses 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 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 losses, liabilities, claims, damages
and expenses whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such
18
untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred
(including reasonable fees and disbursements of counsel chosen by any
indemnified party), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by
any court or 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) of this
Section 5(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by any Initial
Purchaser, any Holder, including Participating Broker-Dealers or any underwriter
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto). The foregoing
indemnification with respect to any Preliminary Prospectus or any Prospectus
shall not inure to the benefit of any indemnified party from whom the person
asserting any such losses, claims, damages or liabilities purchased Registrable
Securities or Exchange Securities (or any person controlling such indemnified
party) if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not sent
or given by or on behalf of such indemnified party to such person, at or prior
to the written confirmation of the sale of such Registrable Securities or
Exchange Securities to such person and if the Prospectus (as so amended or
supplemented), would have cured the untrue statement or omission or alleged
untrue statement or omission giving rise to such loss, claim, damage or
liability.
(b) In the case of a Shelf Registration, each Holder agrees,
severally and not jointly, to indemnify and hold harmless the Company, each
Initial Purchaser, each underwriter who participates in an offering of
Registrable Securities and the other selling Holders and each of their
respective affiliates, directors, officers (including each officer of the
Company who signed the Registration Statement) and employees and each Person, if
any, who controls the Company, any Initial Purchaser, any underwriter or any
other selling Holder within the meaning of Section 15 of the 1933 Act, against
any and all losses, liabilities, claims, damages and expenses described in the
indemnity contained in Section 5(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Holder, as the case may be,
expressly for use in the Registration Statement (or any amendment thereto), or
the Prospectus (or any amendment or supplement thereto); provided, however, that
no such Holder shall be liable for any claims hereunder in excess of the amount
of
19
net proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have other than on account of this indemnity agreement. An indemnifying party
may participate at its own expense in the defense of such action. In no event
shall the indemnifying party or parties be liable for the fees and expenses of
more than one 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.
(d) In order to provide for just and equitable contribution in
circumstances in which any of the indemnity provisions set forth in this Section
5 are for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company, the Initial
Purchasers and the Holders shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement incurred by the Company, the Initial Purchasers and the
Holders, as incurred, provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any Person that was not guilty of such fraudulent
misrepresentation. As between the Company, the Initial Purchasers and the
Holders, such parties shall contribute to such aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement in such proportion as shall be appropriate to reflect (i) the relative
benefits received by the Company on the one hand, the Initial Purchasers on
another hand, and the Holders on another hand, from the offering of the Exchange
Securities or Registrable Securities included in such offering, and (ii) the
relative fault of the Company on the one hand, the Initial Purchasers on
another hand, and the Holders on another hand, with respect to the statements or
omissions which resulted in such loss, liability, claim, damage or expense, or
action in respect thereof, as well as any other relevant equitable
considerations. The Company, the Initial Purchasers and the Holders of the
Registrable Securities agree that it would not be just and equitable if
contribution pursuant to this Section 5 were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the relevant equitable considerations. For purposes of this Section 5, each
affiliate of an Initial Purchaser or a Holder, and each director, officer,
employee, agent and Person, if any, who controls an Initial Purchaser or a
Holder or such affiliate within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contributions as such
Initial Purchaser or such Holder, and each director of the Company, each officer
of the Company who signed the Registration Statement, and each Person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company. The parties hereto agree that any underwriting discount or commission
or reimbursement of fees paid to an Initial Purchaser pursuant to the Purchase
Agreement shall not be deemed to be a benefit received by that Initial Purchaser
in connection with the offering of the Exchange Securities or Registrable
Securities included in such offering.
20
6. Miscellaneous.
-------------
(a) Rule 144 and Rule 144A. For so long as the Company is subject to
----------------------
the reporting requirements of Section 13 or 15 of the 1934 Act, the Company
covenants that it 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, and that if it ceases to be so
required to file such reports, it will upon the request of any Holder of
Registrable Securities (i) make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the 1933 Act, (ii) deliver
such information to a prospective purchaser as is necessary to permit sales
pursuant to Rule 144A under the 1933 Act, and (iii) take such further action
that is reasonable in the circumstances, in each case, to the extent required
from time to time to enable such Holder to sell its Registrable Securities
without registration under the 1933 Act within the limitation of the exemptions
provided by (x) Rule 144 under the 1933 Act, as such Rule may be amended from
time to time, (y) Rule 144A under the 1993 Act, as such Rule may be amended from
time to time, or (z) any similar rule or regulation hereafter adopted by the
SEC. Upon the request of any Holder of Registrable Securities, the Company will
deliver to such Holder a written statement as to whether it has complied with
such requirements.
(b) No Inconsistent Agreements. The Company has not entered, and
--------------------------
will not on or after the date of this Agreement enter, into any agreement which
is inconsistent with the rights granted to the Holders of Registrable Securities
in this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's other
issued and outstanding securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has 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; provided, however, that no amendment, modification,
supplement or waiver or consent to any departure from the provisions of Section
5 hereof shall be effective as against any Holder of Registrable Securities
unless consented to in writing by such Holder.
(d) 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
(i) if to a Holder, at the most current address given by such Holder to the
Company by means of a notice given in accordance with the provisions of this
Section 6(d), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; and (ii) if to the
Company, initially at the Company's address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 6(d).
21
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, first class 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, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
-----------------------
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms hereof or of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Registrable Securities,
in any manner, whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Securities, such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, including the restrictions on resale set
forth in this Agreement and, if applicable, the Purchase Agreement, and such
Person shall be entitled to receive the benefits hereof.
(f) Third Party Beneficiaries. The Holders shall be third party
-------------------------
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and Xxxxxxx Xxxxx shall
have the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable,
22
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.
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
XXXXXX & XXXXX CORPORATION
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx
Vice President - Finance and Treasurer
Confirmed and accepted as of
the date first above written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
X.X. XXXXXX SECURITIES INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: /s/ R. Xxxxx Xxxxx
---------------------------
Name: R. Xxxxx Xxxxx
Title: Managing Director
For themselves and as representatives of the
other Initial Purchasers named in Schedule
I to the Purchase Agreement
24
