Exhibit 4.5
ASSURANT, INC.
5.625% SENIOR NOTES DUE 2014
6.750% SENIOR NOTES DUE 2034
REGISTRATION RIGHTS AGREEMENT
February 18, 2004
Citigroup Global Markets Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Banc One Capital Markets, Inc.
As Representatives of the Initial Purchasers
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Assurant, Inc., a corporation organized under the laws of Delaware (the
"Company"), proposes to issue and sell to certain purchasers (the "Initial
Purchasers"), for whom you (the "Representatives") are acting as
representatives, $500,000,000 aggregate principal amount of its 5.625% Senior
Notes due 2014 and $475,000,000 aggregate principal amount of its 6.750% Senior
Notes due 2034 (together, the "Securities"), upon the terms set forth in the
Purchase Agreement between the Company and the Representatives dated February
10, 2004 (the "Purchase Agreement") relating to the initial placement (the
"Initial Placement") of the Securities. To induce the Initial Purchasers to
enter into the Purchase Agreement and to satisfy a condition to your obligations
thereunder, the Company agrees with you for your benefit and the benefit of the
holders from time to time of the Securities (including the Initial Purchasers)
(each a "Holder" and, collectively, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. The terms
defined in this Section 1 include the plural as well as the singular. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Additional Interest" has the meaning set forth in Section 8 hereof.
"Affiliate" has the meaning specified in Rule 405 under the Act and the
terms "controlling" and "controlled" shall have meanings correlative thereto.
"Base Interest" means the interest that would otherwise accrue on the
Securities under the terms thereof and the Indenture, without giving effect to
the provisions of this Registration Rights Agreement.
"Broker-Dealer" means any broker or dealer registered as such under the
Exchange Act.
"Business Day" means any calendar day that is not a Saturday, a Sunday or
a legal holiday in New York, New York and on which commercial banks are open for
business in New York, New York.
"Closing Date" means the date of the first issuance of the Securities.
"Commission" means the Securities and Exchange Commission.
"Deferral Period" has the meaning indicated in Section 4(k)(ii) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" means the 180-day period following
the consummation of the Registered Exchange Offer, 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 Registered
Exchange Offer, all amendments and supplements to such registration statement,
including post-effective amendments thereto, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Exchanging Dealer" means any Holder (which may include any Initial
Purchaser) that is a Broker-Dealer and elects to exchange for New Securities any
Securities that it acquired for its own account as a result of market-making
activities or other trading activities (but not directly from the Company or any
Affiliate of the Company).
"Final Memorandum" means the offering memorandum, dated February 10, 2004,
relating to the Securities, including any and all exhibits thereto and any
information incorporated by reference therein as of such date.
"Holder" has the meaning set forth in the preamble hereto.
"Indenture" means the Indenture relating to the Securities, dated as of
February 18, 2004, between the Company and SunTrust Bank, as trustee, as the
same may be amended from time to time in accordance with the terms thereof.
"Initial Placement" has the meaning set forth in the preamble hereto.
2
"Initial Purchaser" has the meaning set forth in the preamble hereto.
"Losses" has the meaning set forth in Section 6(d) hereof.
"Majority Holders" means, on any date, Holders of a majority of the
aggregate principal amount of Securities or New Securities, as the case may be,
registered under a Registration Statement.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that administer an underwritten offering, if any, under
a Registration Statement.
"New Securities" means debt securities of the Company identical in all
material respects to the Securities (except that the transfer restrictions shall
be modified or eliminated, as appropriate) to be issued under the New Securities
Indenture.
"New Securities Indenture" means an indenture between the Company and the
New Securities Trustee, identical in all material respects to the Indenture
(except that the transfer restrictions shall be modified or eliminated, as
appropriate), which may be the Indenture if in the terms thereof appropriate
provision is made for the New Securities.
"New Securities Trustee" means the Trustee or another bank or trust
company reasonably satisfactory to the Initial Purchasers, as trustee with
respect to the New Securities under the New Securities Indenture.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, 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 New Securities covered by such Registration
Statement, and all amendments and supplements thereto, including any and all
exhibits thereto and any information incorporated by reference therein.
"Purchase Agreement" has the meaning set forth in the preamble hereto.
"Registered Exchange Offer" means the proposed offer of the Company to
issue and deliver to the Holders of the Securities that are not prohibited by
any law or policy of the Commission from participating in such offer, in
exchange for the Securities, a like aggregate principal amount of the New
Securities.
"Registrable Securities" means (i) Securities other than those that have
been (A) registered under a Registration Statement and disposed of in accordance
therewith or (B) distributed to the public pursuant to Rule 144 under the Act or
any successor rule or regulation thereto that may be adopted by the Commission
and (ii) any New Securities resale of which by the Holder thereof requires
compliance with the prospectus delivery requirements of the Act.
3
"Registrar" has the meaning set forth in the Indenture.
"Registration Statement" means any Exchange Offer Registration Statement
or Shelf Registration Statement that covers any of the Securities or the New
Securities pursuant to the provisions of this Agreement, any 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 Period" has the meaning set forth in Section 3(b)
hereof.
"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 New Securities, as applicable, on an appropriate form
under Rule 415 under the Act, or any similar rule that may be adopted by the
Commission, 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" means the trustee with respect to the Securities under the
Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"underwriter" means any underwriter of Securities in connection with an
offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer. (a) The Company shall prepare and use its
reasonable best efforts to file, not later than 120 days following the Closing
Date, with the Commission the Exchange Offer Registration Statement with respect
to the Registered Exchange Offer. The Company shall use its reasonable best
efforts to cause the Exchange Offer Registration Statement to become effective
under the Act within 180 days of the Closing Date. The Company further agrees to
use its reasonable best efforts to complete the Registered Exchange Offer no
later than 225 days following the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration Statement,
the Company shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder electing to
exchange Securities for New Securities (assuming that such Holder is not an
Affiliate of the Company, acquires the New Securities in the ordinary course of
such Holder's business,
4
has no arrangements with any person to participate in the distribution of the
New Securities and is not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer) to trade such New Securities
from and after their receipt without any limitations or restrictions under the
Act and without material restrictions under the securities laws of a substantial
proportion of the several states of the United States.
(c) In connection with the Registered Exchange Offer, the Company shall:
(i) mail or cause to be mailed 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 Registered Exchange Offer open for not less than 20
Business Days after the date notice thereof is mailed to the Holders;
(iii) use its reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act, supplemented
and amended as required, under the Act to ensure that it is available for
sales of New Securities by Exchanging Dealers during the Exchange Offer
Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee, the New Securities Trustee or an Affiliate
of either of them;
(v) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York time, on the last Business Day on which
the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer Registration
Statement, provide a supplemental letter to the Commission (A) stating
that the Company is conducting the Registered Exchange Offer in reliance
on the position of the Commission in Exxon Capital Holdings Corporation
(pub. avail. May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June
5, 1991); and (B) including a representation that the Company has not
entered into any arrangement or understanding with any person to
distribute the New Securities to be received in the Registered Exchange
Offer and that, to the best of the Company's information and belief, each
Holder participating in the Registered Exchange Offer is acquiring the New
Securities in the ordinary course of business and has no arrangement or
understanding with any person to participate in the distribution of the
New Securities; and
(vii) comply in all respects with all applicable laws.
5
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
(i) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance with
Section 4(s) all Securities so accepted for exchange; and
(iii) cause the New Securities Trustee promptly to authenticate and
deliver to each Holder of Securities a principal amount of New Securities
equal to the principal amount of the Securities of such Holder so accepted
for exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer and
any such Holder using the Registered Exchange Offer to participate in a
distribution of the New Securities (x) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the Commission in
Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Xxxxxx Xxxxxxx
and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission's
letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters;
and (y) must comply with the registration and prospectus delivery requirements
of the Act in connection with any secondary resale transaction, which must be
covered by an effective registration statement containing the selling security
holder information required by Item 507 or 508, as applicable, of Regulation S-K
under the Act if the resales are of New Securities obtained by such Holder in
exchange for Securities acquired by such Holder directly from the Company or one
of its Affiliates. Accordingly, each Holder participating in the Registered
Exchange Offer shall be required to represent to the Company that, at the time
of the consummation of the Registered Exchange Offer:
(i) any New Securities received by such Holder will be acquired in
the ordinary course of business;
(ii) such Holder will have no arrangement or understanding with any
person to participate in the distribution (within the meaning of the Act)
of the Securities or the New Securities;
(iii) such Holder is not an Affiliate of the Company;
(iv) if such Holder is not a Broker-Dealer, that it is not engaged
in, and does not intend to engage in, the distribution of the New
Securities;
(v) if such Holder is a Broker-Dealer, that it will receive New
Securities for its own account in exchange for Securities that were
acquired as a result of market-making activities or other trading
activities and that it will be required to acknowledge that it will
deliver a prospectus in connection with any resale of such New Securities;
and
6
(vi) such Holder is not acting on behalf of any person who, to its
knowledge, could not truthfully make the foregoing representations.
(f) If any Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange of
Securities constituting any portion of an unsold allotment, at the request of
such Initial Purchaser, the Company shall issue and deliver to such Initial
Purchaser or the person purchasing New Securities registered under a Shelf
Registration Statement as contemplated by Section 3 hereof from such Initial
Purchaser, in exchange for such Securities, a like principal amount of New
Securities. The Company shall use its best efforts to cause the CUSIP Service
Bureau to issue the same CUSIP number for such New Securities as for New
Securities issued pursuant to the Registered Exchange Offer.
3. Shelf Registration. (a) If (i) due to any change in law or applicable
interpretations thereof by the Commission's staff, the Company determines upon
advice of its outside counsel that it is not permitted to effect the Registered
Exchange Offer as contemplated by Section 2 hereof; (ii) for any other reason
the Registered Exchange Offer is not consummated within 225 days of the Closing
Date; (iii) any Initial Purchaser so requests with respect to Securities that
are not eligible to be exchanged for New Securities in the Registered Exchange
Offer and that are held by it following consummation of the Registered Exchange
Offer; (iv) any Holder (other than an Initial Purchaser) is not eligible to
participate in the Registered Exchange Offer due to applicable law or applicable
interpretation of the Commission; or (v) in the case of any Initial Purchaser
that participates in the Registered Exchange Offer or acquires New Securities
pursuant to Section 2(f) hereof, such Initial Purchaser does not receive freely
tradeable New Securities in exchange for Securities constituting any portion of
an unsold allotment (it being understood that (x) the requirement that an
Initial Purchaser deliver a Prospectus containing the information required by
Item 507 or 508 of Regulation S-K under the Act in connection with sales of New
Securities acquired in exchange for such Securities shall result in such New
Securities being not "freely tradeable;" and (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of New
Securities acquired in the Registered Exchange Offer in exchange for Securities
acquired as a result of market-making activities or other trading activities
shall not result in such New Securities being not "freely tradeable"), the
Company shall effect a Shelf Registration Statement in accordance with
subsection (b) below.
(b) (i) The Company shall as promptly as practicable (but in no event more
than 30 days after so required or requested pursuant to this Section 3), file
with the Commission, and shall 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 Securities or the New Securities, as
applicable, by the Holders thereof 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 no Holder (other than an Initial
Purchaser) shall be entitled to have the Securities held by it covered by such
Shelf Registration Statement unless such Holder agrees in writing to be bound by
all of the provisions of this Agreement applicable to such Holder; and provided
further, that with respect to New Securities received by an Initial Purchaser in
exchange for Securities
7
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 Item 507 or 508 of Regulation S-K, as applicable, in
satisfaction of its obligations under this subsection 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.
(ii) The Company shall use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective, supplemented and
amended as required by the Act, in order to permit the Prospectus forming
part thereof to be usable by Holders for a period (the "Shelf Registration
Period") from the date the Shelf Registration Statement is declared
effective by the Commission until the earlier of (A) the second
anniversary of the Closing Date or (B) the date upon which all the
Securities or New Securities, as applicable, covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement. The Company shall be deemed not to have used its reasonable
best efforts to keep the Shelf Registration Statement effective during the
Shelf Registration Period if it voluntarily takes any action that would
result in Holders of Securities covered thereby not being able to offer
and sell such Securities at any time during the Shelf Registration Period,
unless such action is (x) required by applicable law or otherwise
undertaken by the Company in good faith and for valid business reasons
(not including avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets, and (y) permitted
pursuant to Section 4(k)(ii) hereof.
(iii) The Company shall cause the Shelf Registration Statement and
the related Prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement or such amendment or
supplement, (A) to comply in all material respects with the applicable
requirements of the Act; and (B) not to contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein (in the case
of the Prospectus, in the light of the circumstances under which they were
made) not misleading, other than information included therein or omitted
therefrom in reliance upon, or in conformity with, written information
furnished to the Company by or on behalf of any Holder specifically for
use therein.
4. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company shall:
8
(i) furnish to each of the Representatives and to counsel for
the Holders, not less than three Business Days prior to the filing
thereof with the Commission, a copy of any Exchange Offer
Registration Statement and any Shelf Registration Statement, and
each amendment thereof and each amendment or supplement, if any, to
the Prospectus included therein (including all documents
incorporated by reference therein after the initial filing) and
shall use its reasonable best efforts to reflect in each such
document, when so filed with the Commission, such comments as the
Representatives reasonably propose;
(ii) include the information set forth in Annex A hereto on
the facing page of 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,
in Annex C hereto in the underwriting or plan of distribution
section of the Prospectus contained in the Exchange Offer
Registration Statement, and in Annex D hereto in the letter of
transmittal delivered pursuant to the Registered Exchange Offer;
(iii) if requested by an Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in the Prospectus contained in the Exchange Offer
Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include
the names of the Holders that propose to sell Securities pursuant to
the Shelf Registration Statement as selling security holders.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any amendment or supplement thereto
complies in all material respects with the Act; and
(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, other than
information included therein or omitted therefrom in reliance upon, or in
conformity with, written information furnished to the Company by or on
behalf of any Holder specifically for use therein.
(c) The Company shall advise the Representatives, counsel for the Holders
of Securities covered by any Shelf Registration Statement and any Exchanging
Dealer under any Exchange Offer Registration Statement that has provided in
writing to the Company a telephone or facsimile number and address for notices,
and, if requested by any Representative or any such Holder or Exchanging Dealer,
shall confirm such advice in writing (which notice pursuant to clauses (ii)-(v)
hereof shall be accompanied
9
by an instruction to suspend the use of the Prospectus until the Company shall
have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto has been
filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution of any
proceeding for that purpose;
(iv) 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 institution of any proceeding for such
purpose; and
(v) of the happening of any event that requires any change in the
Registration Statement or the Prospectus so that, as of such date, they
(A) do not contain any untrue statement of a material fact and (B) do not
omit to state a material fact required to be stated therein or necessary
to make the statements therein (in the case of the Prospectus, in the
light of the circumstances under which they were made) not misleading.
(d) The Company shall use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement or the qualification of the securities therein for sale in any
jurisdiction.
(e) The Company shall furnish to each Holder of Securities covered by any
Shelf Registration Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto, including all
material incorporated therein by reference, and, if the Holder so requests in
writing, all exhibits thereto (including exhibits incorporated by reference
therein).
(f) The Company shall, during the Shelf Registration Period, deliver to
each Holder of Securities covered by any Shelf Registration Statement,without
charge, as many copies of the Prospectus (including the Preliminary Prospectus)
included in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request. The Company consents to the use
of the Prospectus or any amendment or supplement thereto 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, included in
the Shelf Registration Statement.
(g) The Company shall furnish to each Exchanging Dealer which so requests,
without charge, at least one copy of the Exchange Offer Registration Statement
10
and any post-effective amendment thereto, including all material incorporated by
reference therein, and, if the Exchanging Dealer so requests in writing, all
exhibits thereto (including exhibits incorporated by reference therein).
(h) The Company shall promptly deliver to each Initial Purchaser, each
Exchanging Dealer and each other person required to deliver a Prospectus during
the Exchange Offer Registration Period, without charge, as many copies of the
Prospectus included in such Exchange Offer Registration Statement and any
amendment or supplement thereto as any such person may reasonably request. The
Company consents to the use of the Prospectus or any amendment or supplement
thereto by any Initial Purchaser, any Exchanging Dealer and any such other
person that may be required to deliver a Prospectus following the Registered
Exchange Offer in connection with the offering and sale of the New Securities
covered by the Prospectus, or any amendment or supplement thereto, included in
the Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Securities pursuant to any Registration Statement, the Company shall arrange, if
necessary, for the qualification of the Securities or the New Securities for
sale under the laws of such jurisdictions as any Holder shall reasonably request
and shall maintain such qualification in effect so long as required; provided
that in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not then so qualified or to take any action that would
subject it to taxation in any such jurisdiction where it is not then so subject,
or to service of process in suits, other than those arising out of the Initial
Placement, the Registered Exchange Offer or any offering pursuant to a Shelf
Registration Statement, in any such jurisdiction where it is not then so
subject.
(j) The Company shall cooperate with the Holders of Securities or New
Securities to facilitate the timely preparation and delivery of certificates
representing Securities or New Securities to be issued or sold pursuant to any
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as Holders may request in writing at least four (4)
Business Days prior to the settlement date for the sales of Securities or New
Securities pursuant to such Registration Statement.
(k) (i) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Company shall promptly (or within the time period
provided for by clause (ii) hereof, if applicable) prepare a post-effective
amendment to the applicable Registration Statement or an amendment or supplement
to the related Prospectus or file any other required document so that, as
thereafter delivered to the Initial 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 required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. In such circumstances, the period of effectiveness of
the Registration Statement provided for in Section 2 or Section 3, as
applicable, shall be extended by the number of days from and including the date
of the giving of a notice of suspension pursuant to Section 4(c) to and
including the date when the Initial Purchasers, the Holders of the Securities
and any known Exchanging
11
Dealer shall have received such amended or supplemented Prospectus pursuant to
this Section.
(ii) Upon the occurrence or existence of any pending corporate
development or any other material event that, in the reasonable judgment
of the Company, makes it appropriate to suspend the availability of a
Shelf Registration Statement and the related Prospectus, the Company shall
give notice (without notice of the nature or details of such events) to
the Holders that the availability of the Shelf Registration is suspended
and, upon actual receipt of any such notice, each Holder agrees not to
sell any Registrable Securities pursuant to the Shelf Registration until
such Holder's receipt of copies of the supplemented or amended Prospectus
provided for in Section 4(k)(i) hereof, or until it is advised in writing
(the "Advice") by the Company that the Prospectus may be used, and has
received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus. The
period during which the availability of the Shelf Registration and any
Prospectus is suspended (the "Deferral Period") shall not exceed 45 days
in any three-month period or 90 days in any twelve-month period. In such
circumstances, the period of effectiveness of the Shelf Registration
Statement provided for in Section 3 shall be extended by the number of
days from and including the date of the giving of such notice to and
including the date when the Initial Purchasers, the Holders of the
Securities and any known Exchanging Dealer shall have received (x) such
copies of the supplemented or amended Prospectus provided for in Section
4(k)(i) hereof (if an amended or supplemented Prospectus is required); or
(y) the Advice (if no amended or supplemented Prospectus is required).
(l) Not later than the effective date of any Registration Statement, the
Company shall provide a CUSIP, ISIN and Common Code numbers, as applicable, for
the Securities or the New Securities, as the case may be, registered under such
Registration Statement and provide the Trustee with printed certificates for
such Securities or New Securities, in a form eligible for deposit with The
Depository Trust Company.
(m) The Company shall comply with all applicable rules and regulations of
the Commission and shall make generally available to its security holders an
earnings statement satisfying the provisions of Section 11(a) of the Act as soon
as practicable after the effective date of the applicable Registration Statement
and in any event no later than 45 days after the end of a 12-month period (or 90
days, if such period is a fiscal year) beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of the
applicable Registration Statement.
(n) The Company shall cause the New Securities Indenture to be qualified
under the Trust Indenture Act, as required by applicable law, in a timely
manner.
12
(o) The Company may require each Holder of Securities to be sold pursuant
to any Shelf Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of such Securities as the Company may
from time to time reasonably require for inclusion in such Registration
Statement. The Company may exclude from such Shelf Registration Statement the
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the Company shall
enter into customary agreements (including, if requested, an underwriting
agreement in customary form) and take all other appropriate actions in order to
expedite or facilitate the registration or the disposition of the Securities,
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 hereof.
(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, any underwriter participating in
any disposition pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by such Holders or any such
underwriter, all relevant financial and other records and pertinent
corporate documents of the Company and its subsidiaries, at a location
where such financial and other records and corporate documents are
normally kept and during normal business hours;
(ii) cause its officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by the
Holders or any such underwriter, attorney, accountant or agent in
connection with any such Registration Statement as is customary for
similar due diligence examinations, provided, however, that 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 or any such underwriter, attorney, accountant
or agent, unless such disclosure is made in connection with a court
proceeding or required by law, or other than as a result of a breach of
such confidentiality provision, such information becomes available to the
public generally or through a third party without an accompanying
obligation of confidentiality;
(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
underwritten offerings and such other matters as may reasonably be
requested;
13
(iv) upon the reasonable request of any Holder, obtain opinions of
counsel to the Company and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling Holder and the
underwriters, if any, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other matters as may
be reasonably requested by such Holders and underwriters;
(v) upon the reasonable request of any Holder, obtain "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 and the underwriters, if any, in customary form and covering
matters of the type customarily covered in "comfort" letters in connection
with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders or the Managing Underwriters, if any,
including those to evidence compliance with Section 4(k) hereof and with
any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this paragraph (q)
shall be performed at each closing under any underwriting or similar agreement
as and to the extent required thereunder.
(r) If a Registered Exchange Offer is to be consummated, upon delivery of
the Securities by Holders to the Company (or to such other person as directed by
the Company) in exchange for the New Securities, the Company shall xxxx, or
caused to be marked, on the Securities so exchanged that such Securities are
being cancelled in exchange for the New Securities. In no event shall the
Securities be marked as paid or otherwise satisfied.
(s) The Company shall use its best efforts if the Securities have been
rated prior to the initial sale of such Securities, to confirm such ratings will
apply to the Securities or the New Securities, as the case may be, covered by a
Registration Statement.
(t) The Company shall use its best efforts to take all other steps
necessary to effect the registration of the Securities or the New Securities, as
the case may be, covered by a Registration Statement.
5. Registration Expenses. The Company shall (i) bear all expenses incurred
in connection with the performance of its obligations under Sections 2, 3 and 4
14
hereof (except any underwriting discounts, commissions and transfer taxes, if
any, relating to the sale or other disposition of Securities or New Securities
by any Holder) and (ii) in the event of any Shelf Registration Statement,
reimburse the Holders for the reasonable fees and disbursements, up to an
aggregate amount of $35,000, of one firm or counsel (which shall initially be
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, but which may be another nationally
recognized law firm experienced in securities matters designated by the Majority
Holders) to act as counsel for the Holders in connection therewith, and, in the
case of any Exchange Offer Registration Statement, will reimburse the Initial
Purchasers for the reasonable fees and disbursements of counsel acting in
connection therewith.
6. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Holder of Securities or New Securities, as the case may
be, covered by any Registration Statement, each Initial Purchaser and, with
respect to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer, Affiliates of each such Holder, Initial Purchaser or
Exchanging Dealer and each person who controls any such Holder, Initial
Purchaser or Exchanging Dealer within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or in any preliminary
Prospectus or the Prospectus, or in any amendment thereof 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 (in the case of any preliminary Prospectus or the Prospectus,
in the light of the circumstances under which they were made) not misleading,
and agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will 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 any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of the party claiming indemnification specifically
for inclusion therein, and provided, further, that the foregoing indemnity
agreement shall not inure to the benefit of any Exchanging Dealer, its
directors, officers and employees, and each person, if any, who controls such
Exchanging Dealer within the meaning of the Act and the Exchange Act, who, in
contravention of a requirement of applicable law, failed to deliver any
Prospectus (as then amended or supplemented) to the person asserting any losses,
claims, damages, liabilities or expenses, caused by any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
Prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if such material misstatement or omission or alleged
material misstatement or omission was cured in the Prospectus (as then amended
or supplemented) and such Prospectus was required by law to be delivered at or
prior to the
16
written confirmation of sale to such person and the Prospectus and any amendment
or supplement thereto was provided by the Company to the Exchanging Dealer in
the requisite quantity and on a timely basis to permit proper delivery on or
prior to the closing of such sale by such Exchanging Dealer. This indemnity
agreement shall be in addition to any liability that the Company may otherwise
have.
The Company also agrees to indemnify as provided in this Section 6(a) or
contribute as provided in Section 6(d) hereof to Losses of each underwriter, if
any, of Securities or New Securities, as the case may be, registered under a
Shelf Registration Statement, their directors, officers, employees, Affiliates
or agents and each person who controls such underwriter on substantially the
same basis as that of the indemnification of the Initial Purchasers and the
selling Holders provided in this Section 6(a) and shall, if requested by any
Holder, enter into an underwriting agreement reflecting such agreement, as
provided in Section 4(p) hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser that is a Holder, in such capacity) severally
and not jointly agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs such Registration Statement and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
each such Holder, but only with reference to written information relating to
such Holder furnished to the Company by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability that any such Holder
may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses; and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel (including
local counsel) of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel,
other than local counsel if not appointed by the indemnifying party, retained by
the indemnified party or parties except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel (including
local counsel) to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the
16
indemnified party would present such counsel with a conflict of interest; (ii)
the actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties that are different from or additional to those
available to the indemnifying party; or (iii) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense of the
indemnifying party. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding. It is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for (i)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Initial Purchasers and the control persons and the Affiliates
of the Initial Purchaser, and (ii) the fees and expenses of more than one
separate firm (in addition to any local counsel) for the Company, its directors,
its officers and each person, if any, who controls the Company within the
meaning of either such section and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm for the
Initial Purchasers and such control persons and affiliates of any Initial
Purchaser, such firm shall be designated in writing by the Representative. In
the case of any such separate firm for the Company, and such directors, officers
and control persons of the Company, such firm shall be designated in writing by
the Company.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section is unavailable to or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party shall have a joint
and several obligation to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending any loss, claim, liability, damage or
action) (collectively "Losses") to which such indemnified party may be subject
in such proportion as is appropriate to reflect the relative benefits received
by such indemnifying party, on the one hand, and such indemnified party, on the
other hand, from the Initial Placement and the Registration Statement which
resulted in such Losses; provided, however, that in no case shall any Initial
Purchaser be responsible, in the aggregate, for any amount in excess of the
purchase discount or commission applicable to such Security, or in the case of a
New Security, applicable to the Security that was exchangeable into such New
Security, as set forth in the Final Memorandum, nor shall any underwriter be
responsible for any amount in excess of the underwriting discount or commission
applicable to the securities purchased by such underwriter under the
Registration Statement which resulted in such Losses. If the allocation provided
by
17
the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
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 in
the Final 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 Memorandum, and benefits received by any other
Holders shall be deemed to be equal to the value of receiving Securities or New
Securities, as applicable, registered under the Act. Benefits received by any
underwriter shall be deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming a part of
the Registration Statement which resulted in such Losses. Relative fault shall
be determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information provided by the indemnifying party,
on the one hand, or by the indemnified party, on the other hand, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The parties agree that
it would not be just and equitable if contribution were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), 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. For purposes of
this Section, each person who controls a Holder within the meaning of either the
Act or the Exchange Act and each director, officer, employee and agent of such
Holder shall have the same rights to contribution as such Holder, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The provisions of this Section will remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder or the
Company or any of the indemnified persons referred to in this Section 6, and
will survive the sale by a Holder of securities covered by a Registration
Statement.
7. Underwritten Registrations. (a) If any of the Securities or New
Securities, as the case may be, covered by any Shelf Registration Statement are
to be sold in an underwritten offering, the Managing Underwriters shall be
selected by the Majority Holders, provided that such Managing Underwriters shall
be reasonably satisfactory to the Company.
(b) No person may participate in any underwritten offering pursuant to any
Shelf Registration Statement, unless such person (i) agrees to sell such
person's
18
Securities or New Securities, as the case may be, on the basis reasonably
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements; and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
8. Additional Interest. (a) If (i) the Registered Exchange Offer is not
consummated on or prior to 225 days after the date of the original issuance of
the Securities or (ii) the Company is required to file the Shelf Registration
Statement in accordance with Section 3 and the Shelf Registration Statement is
not declared effective within 225 days after the original issuance of the
Securities (each such event referred to in clauses (i) and (ii), a "Registration
Default"), the Company shall be obligated to pay additional interest
("Additional Interest") to each Holder of Registrable Securities, during the
period of such Registration Default, at a rate of 0.25% per annum on the
applicable principal amount of Registrable Securities held by such Holder until
such Registration Default has been cured. Such obligation to pay Additional
Interest shall survive until (i) the Exchange Offer Registration Statement is
declared effective and the Registered Exchange Offer is consummated with respect
to all properly tendered Securities or (ii) the Shelf Registration Statement is
declared effective, as the case may be. Following the cure of such Registration
Default, the accrual of Additional Interest will cease.
(b) The Company shall notify the Trustee and the paying agent under the
Indenture promptly following the occurrence of each and every Registration
Default. The Company shall pay the Additional Interest due on the Registrable
Securities by depositing with the paying agent (which may not be the Company for
these purposes), in trust, for the benefit of the Holders thereof, prior to
10:00 a.m., New York City time, on the next applicable interest payment date
specified by the Indenture and the Securities, sums sufficient to pay the
Additional Interest then due. The Additional Interest due shall be payable on
each applicable interest payment date specified by the Indenture and the
Securities to the record holder entitled to receive the interest payment to be
made on such date. Each obligation to pay Additional Interest shall be deemed to
accrue from and include the date of the applicable Registration Default.
(c) The parties hereto agree that the Additional Interest provided for in
this Section 8 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by Holders of Registrable
Securities by reason of the failure of (i) the Shelf Registration Statement to
be filed or (ii) the Exchange Offer Registration Statement to be declared
effective and the Registered Exchange Offer to be consummated, in each case to
the extent required by this Agreement.
(d) Without limiting the remedies available to the Initial Purchasers and
the Holders, the Company acknowledges that any failure by the Company to comply
with their obligations under Section 2 and Section 3 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
19
as may be required to specifically enforce the Company's obligations under
Section 2 and Section 3 hereof.
9. No Inconsistent Agreements. The Company has not entered into, and
agrees not to enter into, any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders herein or that otherwise
conflicts with the provisions hereof.
10. Amendments and Waivers. The provisions of this Agreement 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 a majority of the aggregate
principal amount of the Registrable Securities outstanding; provided that, with
respect to any matter that directly or indirectly affects the rights of any
Initial Purchaser hereunder, the Company shall obtain the written consent of
each such Initial Purchaser against which such amendment, qualification,
supplement, waiver or consent is to be effective; provided, further, that no
amendment, qualification, supplement, waiver or consent with respect to Section
8 hereof shall be effective as against any Holder of Registered Securities
unless consented to in writing by such Holder; and provided, further, that the
provisions of this Article 10 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
Initial Purchasers and each Holder. Notwithstanding the foregoing (except the
foregoing provisos), 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 or New Securities, as the case may be, 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 Majority Holders, determined on the
basis of Securities or New Securities, as the case may be, being sold rather
than registered under such Registration Statement.
11. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
facsimile or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such holder to
the Company in accordance with the provisions of this Section 11, which address
initially is, with respect to each Holder, the address of such Holder maintained
by the Registrar under the Indenture;
(b) if to the Representatives, initially at the address or addresses set
forth in the Purchase Agreement; and
(c) if to the Company, initially at its address set forth in the Purchase
Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
20
The Initial Purchasers or the Company by notice to the other parties may
designate additional or different addresses for subsequent notices or
communications.
12. Remedies. Each Holder, in addition to being entitled to exercise all
rights provided to it herein, in the Indenture or in the Purchase Agreement or
granted by law, including recovery of liquidated or other damages, will be
entitled to specific performance of its rights under this Agreement. The Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive in any action for specific performance the defense that a
remedy at law would be adequate.
13. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective successors and assigns,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Securities and the New Securities, and
the indemnified persons referred to in Section 6 hereof. The Company hereby
agrees to extend the benefits of this Agreement to any Holder of Securities and
the New Securities, and any such Holder may specifically enforce the provisions
of this Agreement as if an original party hereto. If any transferee of any
Holder shall acquire the Securities in any manner, whether by operation of law
or otherwise, such Securities shall be held subject to all the terms of this
Agreement, and by taking and holding such 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 and such Person shall be entitled to
receive the benefits hereof.
14. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
15. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
16. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed in the State of New York. The parties hereto each hereby
waive any right to trial by jury in any action, proceeding or counterclaim
arising out of or relating to this Agreement.
17. Severability. In the event that any one of 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.
18. Securities Held by the Company, etc. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities or New
Securities is required hereunder, Securities or New Securities, as applicable,
held by the
21
Company or its Affiliates (other than subsequent Holders of Securities or New
Securities if such subsequent Holders are deemed to be Affiliates solely by
reason of their holdings of such Securities or New Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and the several Initial Purchasers.
Very truly yours,
Assurant, Inc.
By: /s/ J. Xxxxx Xxxxxxx
---------------------------
Name: J. Xxxxx Xxxxxxx
Title: President and CEO
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
Citigroup Global Markets Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Banc One Capital Markets, Inc.
By: Citigroup Global Markets Inc.
By /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
For themselves and the other several
Initial Purchasers named in Schedule I
to the Purchase Agreement.
ANNEX A
Each broker-dealer that receives new securities for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such new securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer shall not be deemed to admit that it is an "underwriter" within
the meaning of the 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
new 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 date of
consummation of the Registered Exchange Offer and ending on the close of
business 180 days after the date of consummation of the Registered Exchange
Offer, it will make this prospectus available to any broker-dealer for use in
connection with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives new 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 new securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives new securities for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such new 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 new securities received in
exchange for securities where such securities were acquired as a result of
market-making activities or other trading activities. The company has agreed
that, starting on the expiration date and ending on the close of business 180
days after the expiration date, it will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until __________, ______, all dealers effecting
transactions in the new securities may be required to deliver a prospectus.
The company will not receive any proceeds from any sale of new securities
by brokers-dealers. New securities received by broker-dealers for their own
account pursuant to the Registered Exchange Offer 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 new 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 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 new
securities. Any broker-dealer that resells new securities that were received by
it for its own account pursuant to the Registered Exchange Offer and any broker
or dealer that participates in a distribution of such new securities may be
deemed to be an "underwriter" within the meaning of the Act and any profit of
any such resale of new securities and any commissions or concessions received by
any such persons may be deemed to be underwriting compensation under the Act.
The Letter of Transmittal 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 Act.
For a period of 180 days after the consummation of the Registered Exchange
Offer, 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 Letter of Transmittal. The company has agreed to
pay all expenses incident to the Registered Exchange Offer (including the
expenses of one counsel for the holder of the securities) 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 Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
ANNEX D
Rider A
PLEASE FILL IN YOUR NAME AND ADDRESS BELOW 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
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any person to participate in a
distribution of the New Securities. If the undersigned is a Broker-Dealer that
will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for New 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 New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned shall not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
