1
Exhibit 4.2
ROHM AND XXXX COMPANY
$500,000,000 Notes due 2004
$500,000,000 Notes due 2009
$1,000,000,000 Debentures due 2029
REGISTRATION RIGHTS AGREEMENT
New York, New York
July 6, 1999
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxx Securities Inc.
Xxxxxxx, Xxxxx & Co.
Banc One Capital Markets, Inc.
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Rohm and Xxxx Company, a Delaware corporation (the "Company"), proposes
to issue and sell (the "Initial Placement") to Xxxxxxx Xxxxx Xxxxxx Inc.,
Xxxxxxx, Xxxxx & Co., Chase Securities, Inc., First Chicago Capital Markets,
Inc. and the other purchasers listed in Schedule I to the Purchase Agreement
(the "Purchase Agreement") dated June 30, 1999 (collectively, the "Initial
Purchasers"), upon the terms set forth in the Purchase Agreement, $500,000,000
principal amount of its 6.95% Notes due 2004, $500,000,000 principal amount of
its 7.40% Notes due 2009 and $1,000,000,000 principal amount of its 7.95%
Debentures due 2029 (collectively, the "Securities"). The Securities will be
issued under an Indenture dated as of July 1, 1999 (the "Indenture") between the
Company and Chase Manhattan Trust Company, National Association, as trustee (the
"Trustee"). As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to your obligations
thereunder, the Company agrees with you, (i) for your benefit and (ii) for the
benefit of the holders from time to time (each of the foregoing a "Holder" and
together the "Holders") of the Securities or the Exchange Securities (as defined
herein), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
2
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" shall have the same meaning given to that term in Rule 405
of the Act of any successor rule thereunder.
"Closing Date" shall have the same meaning given to that term in the
Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Depositary" means 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 Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer" means the exchange offer by the Company of Exchange
Securities in exchange for the Securities effected pursuant to Section 2 hereof.
"Exchange Offer Registration Period" means the 180-day period following
the issuance of the Exchange Securities, exclusive of any period during which
any stop order shall be in effect suspending the effectiveness of the Exchange
Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration statement
of the Company on an appropriate form under the Act with respect to the Exchange
Offer, 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.
"Exchange Securities" means securities 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 Securities pursuant to the
Exchange Offer.
"Exchanging Dealer" means any Holder (which may include any Initial
Purchaser) which is a broker-dealer electing to exchange Securities acquired for
its own account as a result of market-making activities or other trading
activities for Exchange Securities from whom the Company has received notice
that it will be an Exchanging Dealer.
2
3
"Final Offering Memorandum" shall have the meaning set forth in the
Purchase Agreement.
"Holder" has the meaning set forth in the preamble hereto.
"Indenture" has the meaning set forth in the preamble hereto.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Letter of Transmittal" has the meaning set forth in Section 2(c)
hereof.
"Liquidated Damages" has the meaning set forth in Section 7(a) hereof.
"Majority Holders" means the Holders of a majority of the aggregate
principal amount of securities registered under a Registration Statement.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"Prospectus" means the prospectus included in any Registration
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Securities or the Exchange Securities, covered by such Registration
Statement, and all amendments and supplements to the Prospectus, including
post-effective amendments.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the Exchange Securities pursuant to the provisions of this Agreement, and
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.
"Securities" has the meaning set forth in the preamble hereto.
"Shelf Registration" means a registration effected pursuant to Section
3 hereof.
"Shelf Registration Event" has the meaning set forth in Section 3
hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
3
4
"Shelf Registration Statement" means a "shelf" registration statement
of the Company pursuant to the provisions of Section 3 hereof which covers some
or all of the Securities or the Exchange Securities, as applicable, on an
appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, and 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.
"Special Counsel" means Xxxxx, Brown & Xxxxx or such other single
counsel as shall be specified by the Majority Holders of securities included in
the relevant Registration Statement, the fees and expenses of which will be paid
by the Company pursuant to Section 5 hereof.
"Trustee" has the meaning set forth in the preamble hereto.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Underwriter" means any underwriter of Securities or Exchange
Securities in connection with an offering thereof under a Shelf Registration
Statement.
2. Exchange Offer; Resales of Exchange Securities by Exchanging
Dealers.
(a) The Company shall, for the benefit of the Holders, at the Company's
cost, use its reasonable best efforts to (i) prepare and, as soon as practicable
but not later than 90 days following the Closing Date, file with the Commission
an Exchange Offer Registration Statement on an appropriate form under the Act
with respect to the proposed Exchange Offer and the issuance and delivery to the
Holders, in exchange for the Securities, of a like principal amount of Exchange
Securities, (ii) cause the Exchange Offer Registration Statement to be declared
effective under the Act within 150 days of the Closing Date, (iii) keep the
Exchange Offer Registration Statement effective until the closing of the
Exchange Offer and (iv) cause the Exchange Offer to be consummated not later
than 180 days following the Closing Date.
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 Act, (b) is
not a broker-dealer tendering Securities acquired directly from the Company for
its own account, (c) acquired the Securities and will acquire the Exchange
Securities in the ordinary course of such Holder's business and (d) has no
arrangements or understandings with any Person for the purpose of distributing
the Exchange Securities.
4
5
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 been qualified under the Trust Indenture Act, 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.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Exchange Offer, it being the
objective of such Exchange Offer to enable each Holder electing to exchange
Securities for Exchange Securities (assuming that such Holder is not an
Affiliate of the Company, acquired the Securities and acquires the Exchange
Securities in the ordinary course of such Holder's business and has no
arrangements with any person to participate in the distribution (within the
meaning of the Act) of the Exchange Securities) to transfer such Exchange
Securities from and after their receipt without any limitations or restrictions
under the Act or state securities or "blue sky" laws.
(c) In connection with the Exchange Offer, the Company shall:
(i) 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 relating to the Exchange Offer ("Letter of
Transmittal");
(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) (the "Exchange Period");
(iii) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York;
(iv) permit Holders to withdraw tendered 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 Securities
delivered for exchange, and a statement that such Holder is withdrawing
such Xxxxxx's election to have such Securities exchanged;
(v) notify each Holder that any 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 an Exchanging
Dealer as provided herein); and
5
6
(vi) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Securities validly tendered and
not withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all 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
Securities so accepted for exchange in a principal amount equal to the
principal amount of the Securities of such Holder so accepted for
exchange.
(e) The Initial Purchasers and the Company acknowledge that, pursuant
to interpretations by the Commission's staff of Section 5 of the Act, and in the
absence of an applicable exemption therefrom, each Exchanging Dealer is required
to deliver a Prospectus (the "Post-Exchange Prospectus") in connection with a
sale of any Exchange Securities received by such Exchanging Dealer pursuant to
the Exchange Offer in exchange for Securities acquired for its own account as a
result of market-making activities or other trading activities. Accordingly, the
Company shall:
(i) include the information set forth in Annex A hereto on the
cover of the Prospectus contained in the Exchange Offer Registration
Statement, in Annex B hereto in the forepart of the Exchange Offer
Registration Statement in a section setting forth details of the
Exchange Offer, and in Annex C hereto in the underwriting or plan of
distribution section of the Prospectus forming a part of the Exchange
Offer Registration Statement, and include the information set forth in
Annex D hereto in each Letter of Transmittal delivered pursuant to each
Exchange Offer; and
(ii) use its reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective under the Act
during the Exchange Offer Registration Period for delivery of the
Prospectus forming a part thereof by Exchanging Dealers in connection
with sales of Exchange Securities received pursuant to the Exchange
Offer, as contemplated by Section 4(h) below.
(f) In the event that the Initial Purchasers determine that they are
not eligible to participate in the Exchange Offer with respect to the exchange
of Securities constituting any portion of their initial unsold allotment, at the
request of the Initial Purchasers, the Company shall issue and deliver to the
Initial Purchasers, in exchange for such Securities, a like principal
6
7
amount of Exchange Securities (provided that such Exchange Securities shall
include legends with respect to restrictions on transfer), and the Company
shall, starting on the date of effectiveness of the Exchange Offer Registration
Statement and ending on the close of business on the 180th day following such
date, make available as many copies of the Exchange Offer Registration Statement
prospectus, as amended or supplemented, as reasonably requested by the Initial
Purchasers. The Company shall seek to cause the CUSIP Service Bureau to issue
the same CUSIP number(s) for such securities as for the corresponding Exchange
Securities issued pursuant to the Exchange Offer. The Initial Purchasers agree
to promptly notify the Company in writing following the resale of their initial
allotment of Securities.
(g) Interest on each Exchange Security will accrue from the last date
on which interest was paid on the Securities surrendered in exchange therefor
or, if no interest has been paid on the 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
Commission, (ii) the due tendering of Securities shall be in accordance with the
Exchange Offer, (iii) that each Holder of Securities exchanged in the Exchange
Offer shall have made the representations set forth above in this Section 2 and
such other representations as may be reasonably necessary under applicable
Commission rules, regulations or interpretations to render the use of Form S-4
or other appropriate form under the 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 judgment, would reasonably be expected to impair the ability of the
Company to proceed with the Exchange Offer. The Company shall inform the Initial
Purchasers of the names and addresses of the Holders to whom the Exchange Offer
is made, and the Initial Purchasers shall have the right to contact such Holders
and otherwise facilitate the tender of Securities in the Exchange Offer.
3. Shelf Registration. If, (i) because of any change in law or in
currently prevailing interpretations thereof by the Commission's staff, the
Company is not permitted to effect the Exchange Offer as contemplated by Section
2 hereof, (ii) the Exchange Offer is not consummated within 180 days after the
Closing Date, (iii) upon the request of any of the Initial Purchasers within 60
days after consummation of the Exchange Offer with respect to Securities that
are not eligible to be exchanged for Exchange Securities in the Exchange Offer
or with respect to Exchange Securities received by the Initial Purchasers in the
Exchange Offer that are not freely tradeable or (iv) if a Holder 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 freely tradeable Exchange Securities
pursuant to the Exchange Offer (other than due solely to the status of such
Holder as an Affiliate of the Company or as a broker-dealer) and, in the
reasonable opinion of the Company, cannot deliver the Exchange Offer
Registration Statement in connection with its sale of the Exchange Securities
(it being understood that, for purposes of this Section 3, (x) the requirement
that the Initial Purchasers deliver a Prospectus containing the information
required by Items 507 and/or
7
8
508 of Regulation S-K under the Act in connection with sales of Exchange
Securities acquired in exchange for such Securities shall result in such
Exchange Securities being not "freely tradeable" but (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of Exchange
Securities acquired in the Exchange Offers in exchange for Securities acquired
as a result of market-making activities or other trading activities shall not
result in such Exchange Securities being not "freely tradeable") (the events
described in clauses (i) through (iv) of this paragraph are each referred to
herein as a "Shelf Registration Event"), the following provisions shall apply:
(a) The Company shall promptly deliver to the applicable Holders
written notice of a Shelf Registration Event and, as promptly as practicable,
file with the Commission and thereafter use its reasonable best efforts to cause
to be declared effective under the Act, a Shelf Registration Statement relating
to the offer and sale of the applicable Securities or the applicable Exchange
Securities, as the case may be, by the applicable Holders from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement; provided, however, that with respect
to Exchange Securities received by the Initial Purchasers in exchange for
Securities constituting any portion of an unsold allotment, the Company may, if
permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration Statement containing
the information required by Regulation S-K Items 507 and/or 508, as applicable,
in satisfaction of their obligations under this paragraph (a) with respect
thereto, and any such Exchange Offer Registration Statement, as so amended,
shall be referred to herein as, and governed by the provisions herein applicable
to, a Shelf Registration Statement.
(b) The Company shall use its reasonable best efforts to keep such
Shelf Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by such Holders for a period of two
years after the issuance of the Securities (or, if Rule 144(k) is amended to
provide a shorter restrictive period, such shorter period) or such shorter
period that will terminate when all the Securities or Exchange Securities, as
applicable, covered by such Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement (in any such case, such period being called
the "Shelf Registration Period").
(c) The Company shall not permit any securities other than Securities
to be included in the Shelf Registration Statement. The Company further agrees,
if necessary, to supplement or amend the Shelf Registration Statement, as
required by Section 4(k) 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 Commission.
4. Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent specified, any Exchange Offer Registration
Statement, the following provisions shall apply:
8
9
(a) The Company shall furnish to each Initial Purchaser, prior to the
filing thereof with the Commission, a copy of any Shelf Registration Statement
and any Exchange Offer Registration Statement, and each amendment thereof and
each amendment or supplement, if any, to the Prospectus included therein and the
Company shall, if reasonably requested, promptly incorporate in such
Registration Statement, such information and comments as the Initial Purchasers
reasonably agree with the Company and its counsel should be included therein.
(b) The Company shall ensure that, subject to Section 4(k), (i) any
Registration Statement and any amendment thereto and any Prospectus forming a
part thereof and any amendment or supplement thereto complies in all material
respects with the Act, (ii) any 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 Registration Statement, and any amendment or supplement to such
Prospectus, does not, during the period when delivery thereof is required,
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements, in the light of the circumstances
under which they were made, not misleading.
(c)(1) The Company shall advise the Initial Purchasers and, in
the case of a Shelf Registration Statement, the Holders of securities
covered thereby and, if requested by you or any such Holder, confirm
such advice in writing:
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when a
Registration Statement or any post-effective amendment thereto
has become effective; and
(ii) of any request by the Commission for amendments
or supplements to a Registration Statement or the Prospectus
included therein or for additional information (and shall
provide to the Initial Purchasers a copy of any such request
by the Commission).
(2) The Company shall advise the Initial Purchasers and, in
the case of a Shelf Registration Statement, the Holders of securities
covered thereby, and, in the case of an Exchange Offer Registration
Statement, any Exchanging Dealer that has provided in writing to the
Company a telephone or facsimile number and address for notices, and,
if requested by you or any such Holder or Exchanging Dealer, confirm
such advice in writing:
(i) of the issuance by the Commission of any stop
order suspending the effectiveness of a Registration Statement
or the initiation of any proceedings for that purpose;
9
10
(ii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the securities included therein for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(iii) of the suspension of the use of a Prospectus.
(d) Subject to Section 4(k), the Company shall use its reasonable best
efforts to prevent the issuance or obtain the withdrawal of any order suspending
the effectiveness or use of any Registration Statement at the earliest possible
time.
(e) The Company shall furnish to each Holder of securities included
within the coverage of any Shelf Registration Statement, without charge, at
least one copy of such Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if the
Holder so requests in writing, all exhibits (including those incorporated by
reference).
(f) Subject to Section 4(k), the Company shall, during the Shelf
Registration Period, as promptly as is reasonably practicable deliver to each
Holder of securities included within the coverage of any Shelf Registration
Statement, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably request; and
subject to Section 4(k), the Company consents to the use of the Prospectus or
any amendment or supplement thereto as to which no notice has been given
pursuant to paragraph 4(c)(2) by each of the selling Holders of securities in
connection with the offering and sale of the securities covered by the
Prospectus or any amendment or supplement thereto.
(g) The Company shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, any documents incorporated by reference therein, and,
if the Exchanging Dealer so requests in writing, all exhibits (including those
incorporated by reference).
(h) Subject to Section 4(k), the Company shall, during the Exchange
Offer Registration Period, promptly deliver to each Exchanging Dealer, without
charge, as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such
Exchanging Dealer may reasonably request for delivery by such Exchanging Dealer
in connection with a sale of Exchange Securities received by it pursuant to the
Exchange Offer; and subject to Section 4(k), the Company consents to the use of
the Prospectus or any amendment or supplement thereto as to which no notice has
been given pursuant to paragraph 4(c)(2) by any such Exchanging Dealer, as
aforesaid.
10
11
(i) Prior to the Exchange Offer or the effectiveness of a Registration
Statement, the Company shall, if required by applicable law, register or qualify
or cooperate with the Holders of securities included therein and their
respective counsel in connection with the registration or qualification of such
securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any such Holders reasonably request in writing and do any and
all other acts or things necessary or advisable to enable the offer and sale in
such United States jurisdictions of the securities covered by such Registration
Statement; provided, however, that the Company will not be required to (1)
qualify generally to do business as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to so
qualify but for this Section 4(i), (2) file any general consent to service of
process in any jurisdiction where it is not as of the date hereof so subject or
(3) subject itself to taxation in any jurisdiction where it is not otherwise
subject.
(j) Unless the applicable securities shall be in book-entry only form,
the Company shall cooperate with the Holders of Securities or Exchange
Securities to facilitate the timely preparation and delivery of certificates
representing Securities or Exchange Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as Holders may request prior to sales of Securities
or Exchange Securities pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraphs
(c)(1)(ii), (c)(2)(i) or (c)(2)(iii) above, the Company agrees to notify the
Initial Purchasers, and in the case of a Shelf Registration Statement, the
Holders of securities covered thereby, to suspend use of the Prospectus and the
Company shall prepare, using its reasonable best efforts to do so as soon as
possible, a post-effective amendment to any Registration Statement or an
amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to purchasers of the securities
included therein, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and the Initial Purchasers, and in the case of a Shelf
Registration Statement, the Holders of securities covered thereby, shall suspend
use of such Prospectus until the Company has amended or supplemented such
Prospectus so that such Prospectus does not contain any such untrue statement or
omission.
(l) The Company shall use its reasonable best efforts to cause The
Depository Trust Company ("DTC") on the first business day following the
effective date of any Shelf Registration Statement hereunder or as soon as
possible thereafter to remove (i) from any existing CUSIP number assigned to any
Securities, any designation indicating that such Securities are "restricted
securities," which efforts shall include delivery to DTC of a letter executed by
the Company substantially in the form of Annex E hereto and (ii) any other stop
or restriction on DTC's system with respect to such Securities. In the event the
Company is unable to cause DTC to take the actions described in the immediately
preceding sentence, the Company
11
12
shall take such actions as the Initial Purchasers may reasonably request to
provide, as soon as practicable, a CUSIP number for each series of Securities
registered under such Registration Statement and to cause such CUSIP numbers to
be assigned to such Securities (or to the maximum aggregate principal amount of
such Securities to which such number(s) may be assigned). Upon compliance with
the foregoing requirements of this Section 4(1), the Company shall provide the
Trustee with printed certificates for each series of Securities, in a form
eligible for deposit with DTC.
(m) The Company shall use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission and shall make generally
available to its security holders as soon as practicable after the effective
date of the applicable Registration Statement an earnings statement satisfying
the provisions of Section 11(a) of the Act.
(n) The Company may require each Holder of securities to be sold
pursuant to any Shelf Registration Statement and each Exchanging Dealer required
to deliver a Prospectus to furnish to the Company such information regarding
such Holder and the distribution of such securities by such Holder as the
Company may from time to time reasonably require for inclusion in such
Registration Statement and securities of a Holder that does not provide
information necessary for inclusion in such Registration Statement may be
omitted from any Shelf Registration Statement or any Post-Exchange Prospectus.
(o) The Company shall, if reasonably requested, and in no event more
than one time, promptly incorporate in a Prospectus supplement or post-effective
amendment to a Shelf Registration Statement, such information as the Managing
Underwriters and Holders of a majority in aggregate principal amount of each
series of Securities reasonably agree with the Company and its counsel should be
included therein and shall make all required filings of such Prospectus
supplement or post-effective amendment as soon as notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment provided
that the Company shall not be required to take any action under this Section
4(o) that is not in the reasonable opinion of counsel for the Company in
compliance with applicable law.
(p) In the case of any Shelf Registration Statement, the Company shall
enter into such customary agreements (including underwriting agreements) and
take all other appropriate and reasonably required actions in connection
therewith in order to expedite or facilitate the registration or the disposition
of the applicable Securities or the applicable Exchange Securities, as the case
may be, and in connection therewith, if an underwriting agreement is entered
into, cause the same to contain indemnification provisions and procedures no
less favorable than those set forth in Section 6 (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal amount of
each applicable series of Securities and the Managing Underwriters, if any) with
respect to all parties to be indemnified pursuant to Section 6.
12
13
(q) In the case of any Shelf Registration Statement, the Company shall
(i) make reasonably available for inspection by the Holders of securities to be
registered thereunder, subject to their acceptance of the provisions of this
Section 4(q), any underwriter participating in any distribution pursuant to such
Registration Statement, and any Special Counsel, accountant or other agent
retained by such Holders or any such underwriter, all relevant financial and
other records, pertinent corporate documents and properties of the Company and
its subsidiaries as shall reasonably be required in connection with the
discharge of their due diligence obligations; (ii) cause the Company's officers,
directors and employees and any relevant trustee to supply all relevant
information reasonably requested by such Holders or any such underwriter,
Special Counsel, accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence examinations; provided,
however, that, in the case of clause (i) and (ii) above, any information that is
designated in writing by the Company, in good faith, as confidential at the time
of delivery of such information shall be kept confidential by such Holders and
any such underwriter, Special Counsel, accountant or agent, unless such
disclosure is made in connection with a court proceeding or as required by law
after notice has been given to the Company of such pending disclosure and a
reasonable opportunity has been provided, whenever reasonably possible, for the
Company to obtain an appropriate protective order for the information to be
disclosed, or such information becomes available to the public generally or
through a third party without an accompanying obligation of confidentiality; and
provided further, however, that the foregoing inspection and information
gathering shall be coordinated on behalf of such Holders and the other parties
entitled thereto by the Special Counsel; (iii) make such representations and
warranties to the Holders of securities registered thereunder and the
underwriters, if any, in form, substance and scope as are customarily made by
issuers to underwriters in secondary offerings and covering such matters as are
customarily covered in representations and warranties requested in secondary
offerings; (iv) obtain opinions of the general counsel of the Company and
updates thereof addressed to each selling Holder of securities registered
thereunder (if requested by the Majority Holders) and the underwriters, if any,
covering such matters and with such exceptions as are customarily covered or
taken in opinions requested in secondary offerings; (v) obtain "cold comfort"
letters and updates thereof from the independent certified public accountants of
the Company (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 and financial data are, or are required
to be, included in the Registration Statement), addressed to each selling Holder
of securities registered thereunder (if requested by the Majority Holders) and
the underwriters, if any, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with secondary
offerings; and (vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Managing Underwriters, if any, or
their counsel including those to evidence compliance with Section 4(k) and with
conditions customarily contained in the underwriting agreement or other
agreement entered into by the Company. The foregoing actions set forth in
clauses (iii), (iv), (v) and (vi) of this Section 4(q) shall be performed at (A)
the effectiveness of such Registration Statement and each post-
13
14
effective amendment thereto and (B) the closing under an underwriting or similar
agreement as and to the extent required thereunder.
Notwithstanding the foregoing, the Company shall not be required to
comply with the foregoing actions set forth in clauses (i) through (vi) above
more than once in connection with an underwritten offering pursuant to a Shelf
Registration Statement and the only Holders that may participate in any such
underwritten offering are those that agree to enter into customary agreements
and provide required information.
(r) In the case of any Exchange Offer Registration Statement, if
requested by the Initial Purchasers, the Company shall (i) make reasonably
available for inspection by the Initial Purchasers, subject to their acceptance
of the provisions of this Section 4(r), and any Special Counsel, accountant or
other agent retained by the Initial Purchasers, all relevant financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries as shall reasonably be required in connection with the discharge of
their due diligence obligations; (ii) cause the Company's officers, directors
and employees and any relevant trustee to supply all relevant information
reasonably requested by the Initial Purchasers or any such Special Counsel,
accountant or agent in connection with any such Registration Statement as is
customary for similar due diligence examinations; provided, however, that, in
the case of clause (i) and (ii) above, any information that is designated in
writing by the Company, in good faith, as confidential at the time of delivery
of such information shall be kept confidential by the Initial Purchasers and any
such Special Counsel, accountant or agent, unless such disclosure is made in
connection with a court proceeding or as required by law after notice has been
given to the Company of such pending disclosure and a reasonable opportunity has
been provided, whenever reasonably possible, for the Company to obtain an
appropriate protective order for the information to be disclosed, or such
information becomes available to the public generally or through a third party
without an accompanying obligation of confidentiality; and provided further,
however, that the foregoing inspection and information gathering shall be
coordinated on behalf of the Initial Purchasers and other parties entitled
thereto by the Special Counsel and other parties; (iii) make such
representations and warranties to the Initial Purchasers, in form, substance and
scope as are customarily made by issuers to underwriters in secondary offerings
and covering such matters as are customarily covered in representations and
warranties requested in secondary offerings; and (iv) deliver such documents and
certificates as may be reasonably requested by the Initial Purchasers or their
counsel, including those to evidence compliance with Section 4(k) and with
conditions customarily contained in underwriting agreements. The foregoing
actions set forth in clauses (iii) and (iv) of this Section 4(r) shall be
performed, if reasonably requested by the Initial Purchasers, at the closing of
each of the Exchange Offers and the effective date of any post-effective
amendment to the Exchange Offer Registration Statement.
(s) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act in a timely manner.
14
15
5. Registration Expenses. The Company shall bear all expenses incurred
in connection with the performance of their obligations under Sections 2, 3 and
4 hereof (other than any underwriting discounts or commissions) and, in the
event of any Shelf Registration Statement, will reimburse the applicable Holders
for the reasonable fees and disbursements of the Special Counsel designated in
connection therewith.
6. Indemnification; Contribution.
(a) The Company will indemnify and hold harmless each Holder and each
Exchanging Dealer against any losses, claims, damages or liabilities, joint or
several, to which such Holder or Exchanging Dealer may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any preliminary
Prospectus, any preliminary Prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities or the Exchange Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and, except as provided in (c) below,
will reimburse each Holder and Exchanging Dealer for any legal or other expenses
reasonably incurred by such Holder or Exchanging Dealer in connection with
investigating or defending any such action or claim; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any preliminary
Prospectus, any preliminary Prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities or the Exchange Securities, or any amendment or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Company by any Holder or Exchanging Dealer expressly for inclusion in the
Prospectus; provided further, that if any preliminary Prospectus, any
preliminary Prospectus supplement, the Prospectus as amended or supplemented and
any other prospectus relating to the Securities or the Exchange Securities, or
any amendment or supplement thereto, contained any alleged untrue statement or
allegedly omitted to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading and such statement or
omission shall have been corrected in a revised preliminary Prospectus, any
preliminary Prospectus supplement, the Prospectus as amended or supplemented and
any other prospectus relating to the Securities or the Exchange Securities, or
any amendment or supplement thereto, the Company shall not be liable to any
Holder or Exchanging Dealer under this subsection (a) with respect to such
alleged untrue statement or alleged omission to the extent that any such loss,
claim, damage or liability of such Holder or Exchanging Dealer results from the
fact that such Holder or Exchanging Dealer sold Securities or Exchange
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of a revised preliminary Prospectus
(excluding documents incorporated by reference), preliminary Prospectus
supplement (excluding documents incorporated by reference), the
15
16
Prospectus (excluding documents incorporated by reference), the Prospectus as
amended or supplemented (excluding documents incorporated by reference), any
other amended prospectus relating to the Securities or the Exchange Securities
(excluding documents incorporated by reference) or any amendment or supplement
thereto relating to the Securities or the Exchange Securities (excluding
documents incorporated by reference), as the case may be, containing a
correction of such alleged misstatement or omission, if the Company has made
available copies thereof to such Holder or Exchanging Dealer prior to the
confirmation of such sale; and provided, further, that the Company shall not be
liable to any Holder or Exchanging Dealer under this subsection (a) to the
extent that any such loss, claim, damage or liability of such Holder or
Exchanging Dealer results from the use by such Holder or Exchanging Dealer of
the Prospectus as then amended or supplemented (excluding documents incorporated
by reference) (i) otherwise than in connection with an offer or sale of the
Securities or the Exchange Securities, or (ii) at any time nine months or more
after the time of effectiveness of the Prospectus as amended or supplemented
unless the Company has prior to such use amended or supplemented the Prospectus
as amended or supplemented to comply with Section 10(a)(3) of the Act if
required pursuant to Section 5(b) thereof and such Holder or Exchanging Dealer
uses the Prospectus as then amended or supplemented.
Each Holder and Exchanging Dealer acknowledges that the indemnity
agreement in this subsection (a) does not extend to any liability which such
Holder or Exchanging Dealer might have under Section 5(b) of the Act by reason
of the fact that such Holder or Exchanging Dealer sold Securities or Exchange
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference), the Prospectus as amended or supplemented (excluding
documents incorporated by reference), any other prospectus relating to the
Securities or the Exchange Securities (excluding documents incorporated by
reference) or any amendment or supplement relating thereto (excluding documents
incorporated by reference), as the case may be, if the Company has made
available copies thereof to such Holder or Exchanging Dealer.
For purposes of this subsection (a) the Prospectus (excluding documents
incorporated by reference), the Prospectus as amended or supplemented (excluding
documents incorporated by reference), any other prospectus relating to the
Securities or the Exchange Securities (excluding documents incorporated by
reference) or any amendment or supplement relating thereto (excluding documents
incorporated by reference), shall not be deemed to have been made available to a
Holder or Exchanging Dealer until such Holder or Exchanging Dealer has received
the same.
(b) Each Holder and Exchanging Dealer will indemnify and hold harmless
the Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any preliminary Prospectus, any preliminary Prospectus
16
17
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities or the Exchange
Securities, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
preliminary Prospectus, any preliminary Prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities or the Exchange Securities, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by such Holder or Exchanging Dealer expressly for
inclusion therein; and, except as provided in (c) below, will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof, and in the event that such indemnified party shall not so
notify the indemnifying party within 30 days following receipt of any such
notice by such indemnified party, the indemnifying party shall have no further
liability under such subsection to such indemnified party unless such
indemnifying party shall have received other notice addressed and delivered in
the manner provided in Section 8(c) hereof of the commencement of such action;
but the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than under
such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof as provided above, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under subsection (a) or (b) above in respect
of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Holders and
Exchanging Dealers on the other from the
17
18
offering of the Securities or Exchange Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Holders and Exchanging Dealers on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The benefits received by the
Company shall be deemed to be equal to the total net proceeds from the Initial
Placement (before deducting expenses) as set forth on the cover page of the
Final Offering Memorandum. Benefits received by the Initial Purchasers shall be
deemed to be equal to the total purchase discounts and commissions as set forth
on the cover page of the Final Offering Memorandum, and benefits received by any
other Holders or Exchanging Dealers shall be deemed to be equal to the value of
receiving Securities or Exchange Securities, as applicable, registered under the
Act. The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Holders or Exchanging Dealers on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Holders and Exchanging Dealers agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Holders and Exchanging Dealers 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
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Holder or Exchanging Dealer shall be
required to contribute any amount in excess of the amount by which the total
price at which the applicable Securities or Exchange Securities sold pursuant to
the Registration Statement exceeds the amount of any damages which such Holder
or Exchanging Dealer 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Holders and Exchanging
Dealers in this subsection (d) to contribute are several and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability that the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of a Holder or
Exchanging Dealer and to each person, if any, who controls a Holder or
Exchanging Dealer within the meaning of the Act or the Exchange
18
19
Act; and the obligations of the Holders and Exchanging Dealers under this
Section 6 shall be in addition to any liability that the respective Holders and
Exchanging Dealers may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act or the Exchange Act.
7. Liquidated Damages Under Certain Circumstances. (a) Liquidated
damages ("Liquidated Damages") shall become payable in respect of the Securities
as follows if any of the following events occur (each such event in clauses (i)
through (iv) below, a "Registration Default"):
(i) neither the Exchange Offer Registration Statement nor the
Shelf Registration Statement is filed with the Commission on or prior
to 90th calendar day following the Closing Date;
(ii) in the event that the Company is permitted under the law
and currently prevailing interpretations of the Commission's staff to
effect the Exchange Offers and the Exchange Offer Registration
Statement is not declared effective on or prior to the 150th calendar
day following the Closing Date or the Exchange Offers are not
consummated on or prior to the 180th calendar day following the Closing
Date;
(iii) in the event the Company is required to file a Shelf
Registration Statement, the Shelf Registration Statement is not
declared effective on or prior to the 210th day following the Closing
Date; or
(iv) after a Shelf Registration Statement is declared
effective, (A) such Shelf Registration Statement ceases to be effective
prior to the end of the Shelf Registration Period (except as permitted
in paragraph (b) of this Section 7); (B) such Shelf Registration
Statement or the related Prospectus ceases to be useable in connection
with resales of Securities or Exchange Securities, as the case may be,
covered by such Shelf Registration Statement prior to the end of the
Shelf Registration Period (except as permitted in paragraph (b) of this
Section 7) because (1) the Company determines that an event occurs as a
result of which the related Prospectus forming part of such Shelf
Registration Statement would include any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein in the light of the circumstances under which they were made
not misleading, (2) the Company determines that it shall be necessary
to amend such Shelf Registration Statement, or supplement the related
Prospectus, to comply with the Act or the Exchange Act or the rules
thereunder, or (3) the Company determines that it is advisable to
suspend use of the Prospectus for a discrete period of time due to
pending material corporate developments or similar material events that
have not yet been publicly disclosed and as to which the Company
believes public disclosure will be prejudicial to the Company.
19
20
Liquidated Damages shall accrue on the applicable Securities or the
applicable Exchange Securities, as the case may be, over and above the interest
rate set forth in the title to the applicable Securities or the applicable
Exchange Securities, as the case may be, following the occurrence of any
Registration Default set forth in clauses (i), (ii) and (iii) above from and
including the next day following each such Registration Default, in each case at
a rate equal to 0.25% per annum. The Liquidated Damages attributable to each
Registration Default referred to in clauses (i), (ii) and (iii) above shall
cease to accrue from the filing of the Exchange Offer Registration Statement or
the Shelf Registration Statement after such 90-day period, in the case of clause
(i) above, the date of effectiveness of the Exchange Offer Registration
Statement after such 150-day period or the consummation of the Exchange Offers
after such 180-day period, in the case of clause (ii) above, or the date of
effectiveness of the applicable Shelf Registration Statement after the
applicable period, in the case of clause (iii) above. In no event, however,
shall the rate for the Liquidated Damages exceed 0.25% per annum.
If the Shelf Registration Statement is declared effective but shall
thereafter become unusable by the Holders for any reason (whether pursuant to
Section 7(a)(iv) 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 60 days in the aggregate, then the Liquidated Damages
shall accrue on the applicable Securities or the applicable Exchange Securities,
as the case may be, over and above the interest rate set forth in the title to
the applicable Securities or the applicable Exchange Securities, as the case may
be, beginning on the 61st such date that such Shelf Registration Statement
ceases to be usable at a rate equal to 0.25% per annum.
The Company shall notify the Trustee within five business days after
each and every date on which an event occurs in respect of which Liquidated
Damages are required to be paid (an "Event Date"). Liquidated Damages 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 semi-annual interest payment date, immediately available funds in
sums sufficient to pay the Liquidated Damages then due. The Liquidated Damages
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.
(b) A Registration Default referred to in Section 7(a)(iv) shall be
deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related Prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related Prospectus or (y) the occurrence of other material
events or developments with respect to the Company that would need to be
described in such Registration Statement or the related Prospectus or (z) the
Company determines in its good faith judgment that the disclosure of such event
at such time
20
21
would have a material adverse effect on the business, operations or prospects of
the Company or the disclosure otherwise relates to a pending material business
transaction that has not yet been publicly disclosed and the Company proceeds
promptly and in good faith to amend or supplement such Registration Statement
and related Prospectus as soon as it reasonably believes such disclosure can be
made, and (ii) in the case of clause (y), the Company is proceeding promptly and
in good faith to amend or supplement such Registration Statement and related
Prospectus to describe such events, and in the case of clause (z), such
registration default does not exceed 60 days in any 365-day period.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to the Securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, 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 the
Holders of at least a majority of the then outstanding aggregate principal
amount of each series of Securities (or, after the consummation of any Exchange
Offer in accordance with Section 2 hereof, of each series of Exchange
Securities); provided, however, that, with respect to any matter that affects
the rights of any Initial Purchaser hereunder, the Company shall obtain the
written consent of the Initial Purchasers. Notwithstanding the foregoing (except
the foregoing proviso), a waiver or consent to departure from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders whose Securities are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect the rights of other Holders may be
given by the Holders of a majority of each series of Securities, determined on
the basis of Securities being sold rather than registered under such
Registration Statement.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
8(c), which address initially is, with respect to each Holder, the
address of such Holder maintained by the registrar under the Indenture,
with a copy in like manner to the Initial Purchasers;
(ii) if to you, initially at the address set forth in the
Purchase Agreement; and
21
22
(iii) if to the Company, initially at the address set forth in
the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received. The Initial Purchasers or the Company by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Securities and/or Exchange Securities.
The Company hereby agrees to extend the benefits of this Agreement to any
Holders of Securities and/or Exchange Securities and any such Holder may enforce
the provisions of this Agreement as if an original party hereto.
(e) 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.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or Exchange Securities is required hereunder, Securities or Exchange Securities,
as applicable, held by the Company or its Affiliates (other than subsequent
Holders of Securities or Exchange Securities if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such Securities or
Exchange Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
22
23
Please confirm that the foregoing correctly sets forth the agreement
among the Company and you.
Very truly yours,
ROHM AND XXXX COMPANY
By:_________________________________
Name:
Title:
Accepted, July 6, 1999
XXXXXXX XXXXX XXXXXX INC.
XXXXX SECURITIES INC.
XXXXXXX, XXXXX & CO.
BANC ONE CAPITAL MARKETS, INC.
By: XXXXXXX XXXXX XXXXXX INC.
By:_________________________________
Name:
Title:
24
ANNEX A
Annex A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offers must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. Each
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Securities acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Company has agreed that, ending on
the close of business on the 180th day following the Expiration Date (as defined
herein), it will make this Prospectus available to any broker-dealer for use in
connection with any such resale. See "Plan of Distribution."
25
ANNEX B
Annex B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
26
ANNEX C
Plan of Distribution
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offers must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, starting on the applicable Expiration
Date and ending on the close of business on the 180th day following such
Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale.
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Exchange Offers may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or at negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such
Exchange Securities. Any broker-dealer that resells Exchange Securities that
were received by it for its own account pursuant to the Exchange Offers and any
broker or dealer that participates in a distribution of such Exchange Securities
may be deemed to be an "underwriter" within the meaning of the Act and any
profit of any such resale of Exchange Securities and any commissions or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. Each Letter of Transmittal relating to
the exchange of Securities for Exchange Securities states that by acknowledging
that it will deliver and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.
For a period of 180 days after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the applicable Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Exchange Offers other than commissions or concessions
of any brokers or dealers and will indemnify the holders of the Securities
(including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
27
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:___________________________________________________________________________
Address:________________________________________________________________________
________________________________________________________________________
Rider B
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 Securities, it
represents that the 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 in connection with
any resale of such Exchange Securities; 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 Act.
28
ANNEX E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
ROHM AND XXXX COMPANY
000 Xxxxxxxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000-2399
__________________, 199__
The Depository Trust Company
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel's Office
Ladies and Gentlemen:
We refer to the Letter of Representations, dated July 1, 1999 (the
"Letter of Representations"), from Rohm and Xxxx Company (the "Issuer") and
Chase Manhattan Trust Company, National Association, as trustee (the "Trustee"),
to The Depository Trust Company ("DTC") regarding the Issuer's 6.95% Notes due
2004, 7.40% Notes due 2009 and 7.95% Debentures due 2029 (the "Old Securities").
The CUSIP numbers of the Old Securities are 775371 AL 1, 775371 AP 2 and 775371
AS 6, respectively, for qualified institutional buyers, U77533 AA 2, U77533 AB 0
and U77533 AC 8, respectively, for buyers who were sold Old Securities in
compliance with Regulation S under the Securities Act of 1933, as amended, and
775371 AM 9, 775371 AQ 0 and 775371 AT 4, respectively, for institutional
accredited investors. The Issuer and the Trustee hereby agree and notify DTC
that as of ________ __, 199__, the Securities and Exchange Commission declared
effective a Registration Statement (File No. _____) with respect to an offering
of the Issuer's 6.95% Exchange Notes due 2004, 7.40% Exchange Notes due 2009 and
7.85% Exchange Debentures due 2029, (the "New Securities") (CUSIP Nos.
_________, _________ and _________, respectively) in exchange for the Old
Securities. Following the consummation of the exchange offer and the
cancellation of the global securities representing the Old Securities, the
Issuer and the Trustee agree that, with the exception of the Representations for
Rule 144A Securities attached thereto, the Letter of Representations and any
applicable riders thereto shall remain in full force and effect with respect to
the New Securities.
Very truly yours,
ROHM AND XXXX COMPANY
By:_________________________________
Name:
Title:
29
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
By:_________________________________
Name:
Title:
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:_________________________________
Name:
Title:
