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Exhibit 4.3
THE XXXXXXX-XXXXXXXX COMPANY
$150,000,000 7.375% Debentures Due 2027
$150,000,000 7.450% Debentures Due 2097
REGISTRATION AGREEMENT
February 4, 1997
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
The Xxxxxxx-Xxxxxxxx Company, an Ohio corporation (the
"Company"), proposes to issue and sell to Salomon Brothers Inc (the "Initial
Purchaser"), upon the terms set forth in a purchase agreement of even date
herewith (the "Purchase Agreement"), $150,000,000 principal amount of 7.375%
Debentures due 2027 (the "2027 Debentures") and $150,000,000 principal amount of
7.450% Debentures due 2097 (the "2097 Debentures" and, together with the 2027
Debentures, the "Debentures") (the "Initial Placement"). As an inducement to the
Initial Purchaser 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 Debentures or the
Exchange Debentures (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:
"ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder, each as the same
may be amended from time to time.
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"AFFILIATE" shall have the meaning ascribed to that term in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act.
"CLOSING DATE" has the meaning given such term in the Purchase
Agreement.
"COMMISSION" means the Securities and Exchange Commission.
"DEBENTURES" has the meaning set forth in the preamble hereto.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder,
each as the same may be amended from time to time.
"EXCHANGE DEBENTURES" means, with respect to the 2027
Debentures, the 2027 Exchange Debentures, and with respect to the 2097
Debentures, the 2097 Exchange Debentures.
"EXCHANGE OFFER REGISTRATION PERIOD" means the 180-day period
following the consummation of the Registered Exchange Offers, 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 Offers, 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.
"EXCHANGING DEALER" means any Holder (which may include any
Initial Purchaser) which is a broker-dealer electing to exchange Debentures
acquired for its own account as a result of market-making activities or other
trading activities for Exchange Debentures.
"FINAL MEMORANDUM" has the meaning set forth in the Purchase
Agreement.
"HOLDER" has the meaning set forth in the preamble hereto.
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"INDENTURE" means the Indenture relating to the Debentures
dated as of February 1, 1996, between the Company and The Chase Manhattan Bank
(formerly known as Chemical 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.
"LOSSES" has the meaning given such term in Section 6(d)
hereof.
"MAJORITY HOLDERS" means the Holders of a majority of the
aggregate principal amount of Debentures or Exchange Debentures registered under
the 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 Debentures or the Exchange Debentures, covered by such Registration
Statement, and all amendments and supplements to the Prospectus, including
post-effective amendments.
"PURCHASE AGREEMENT" has the meaning set forth in the preamble
hereto.
"INITIAL PURCHASER" has the meaning set forth in the preamble
hereto.
"REGISTERED EXCHANGE OFFERS" means the proposed offers to the
Holders to issue and deliver to such Holders a like principal amount of (i) 2027
Exchange Debentures, in exchange for 2027 Debentures and (ii) 2097 Exchange
Debentures, in exchange for 2097 Debentures.
"REGISTRATION DEFAULT" has the meaning given such term in
Section 7(a) hereof.
"REGISTRATION STATEMENT" means any Exchange Offer Registration
Statement or Shelf Registration Statement that
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covers any of the Debentures or the Exchange Debentures 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.
"SHELF REGISTRATION" means a registration effected pursuant to
Section 3 hereof.
"SHELF REGISTRATION PERIOD" has the meaning given
such term 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 Debentures or the Exchange Debentures, 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 INTEREST" has the meaning given such term in Section
7(a) hereof.
"TRUSTEE" means The Chase Manhattan Bank, as Trustee, under
the Indenture.
"2097 DEBENTURES" has the meaning set forth in the preamble
hereto.
"2097 EXCHANGE DEBENTURES" means the debentures of the Company
which are identical in all material respects to the 2097 Debentures (except that
the 2097 Exchange Debentures will not contain terms with respect to transfer
restrictions or Special Interest) to be issued under the Registered Exchange
Offers in exchange for the 2097 Debentures.
"2027 DEBENTURES" has the meaning set forth in the preamble
hereto.
"2027 EXCHANGE DEBENTURES" means the debentures of the Company
which are identical in all material respects to the 2027 Debentures (except that
the 2097 Exchange Debentures will not contain terms with respect to transfer
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restrictions or Special Interest) to be issued under the Registered Exchange
Offers in exchange for the 2027 Debentures.
"UNDERWRITER" means any underwriter of Debentures in
connection with an offering thereof under a Shelf Registration Statement.
2. REGISTERED EXCHANGE OFFERS; RESALES OF EXCHANGE DEBENTURES
BY EXCHANGING DEALERS. (a) The Company shall prepare and, not later than 90 days
following the Closing Date, shall file with the Commission the Exchange Offer
Registration Statement. The Company shall use its best efforts to cause the
Exchange Offer Registration Statement to become effective under the Act within
180 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered Exchange Offers,
it being the objective of such Registered Exchange Offers to enable each Holder
electing to exchange Debentures for Exchange Debentures (assuming that such
Holder is not an Affiliate of the Company, acquires the Exchange Debentures in
the ordinary course of such Holder's business and at the time of the
commencement of the Exchange Offers, has no arrangements with any person to
participate in the distribution (within the meaning of the Act) of the Exchange
Debentures) to transfer such Exchange Debentures from and after their receipt
without any limitations or restrictions under the Act.
(c) In connection with the Registered Exchange Offers, the
Company shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep each Registered Exchange Offers open for not less
than 30 days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law);
(iii) utilize the services of a depositary for the Registered
Exchange Offers with an address in the Borough of Manhattan, the City
of New York; and
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(iv) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of each Registered
Exchange Offer, the Company shall:
(i) accept for exchange all Debentures tendered and not
validly withdrawn pursuant to such Registered Exchange Offer;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Debentures so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
to each Holder of tendered Debentures, Exchange Debentures equal in
principal amount to the Debentures of such Holder so accepted for
exchange therefor.
(e) The Initial Purchaser 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 in connection with a sale of any Exchange
Debentures received by such Exchanging Dealer pursuant to the Registered
Exchange Offers in exchange for Debentures 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 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 Registered Exchange Offers, 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
the Letter of Transmittal delivered pursuant to the Registered Exchange
Offers; and
(ii) to the extent that it is notified by an Exchanging Dealer
that such Exchanging Dealer intends to rely upon the procedures set
forth in this Section 2(e), use its best efforts to keep the Exchange
Offer Registration Statement continuously effective under the Act
during the Exchange Offer Registration
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Period for delivery of the Prospectus forming a part thereof by
Exchanging Dealers in connection with sales of Exchange Debentures
received pursuant to the Registered Exchange Offers, as contemplated by
Section 4(h) below.
(f) If the Company has consummated the Exchange Offers, then,
subject to Section 3(iii), (iv) and (v), the Company will have no obligation to
file or to maintain the effectiveness of a Shelf Registration Statement with
respect to any Debentures that are not tendered in the Exchange Offers.
3. SHELF REGISTRATION. If (i) because of 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 Offers as contemplated by Section 2 hereof or (ii) if
for any reason the Exchange Offer Registration Statement is not declared
effective within 180 days following the Closing Date or (iii) for any other
reason the Registered Exchange Offers are not consummated within 210 days
following the Closing Date, or (iv) the Initial Purchaser so requests with
respect to Debentures not eligible to be exchanged for Exchange Debentures in a
Registered Exchange Offer and held by it following consummation of the
Registered Exchange Offers, or (v) if under any applicable laws or applicable
interpretations thereof any Holder at the time of the Registered Exchange Offers
(including the Initial Purchaser) is not eligible to participate in the
Registered Exchange Offers or (vi) any Holder that participates in the
Registered Exchange Offer (other than an Exchanging Dealer), does not receive
freely tradeable thereafter Exchange Debentures in exchange for tendered
Debentures, the following provisions shall apply:
(a) The Company shall at its own cost, as promptly as
practicable file and use its best efforts to cause to be declared effective
under the Act by the 210th day after the Closing Date (or promptly in the event
of a request by the Initial Purchaser) a Shelf Registration Statement relating
to the offer and sale of the Debentures or the Exchange Debentures, as
applicable, 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
Debentures received by the Initial Purchaser in exchange for Debentures
constituting any
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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 its
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 keep the Shelf Registration Statement
continuously effective until the earliest of (i) the third anniversary of the
Closing Date (or the first anniversary of the effective date of the Shelf
Registration Statement if such Shelf Registration Statement is filed at the
request of the Initial Purchaser), (ii) the time when the Debentures registered
under the Shelf Registration Statement can be sold by non-Affiliates pursuant to
Rule 144 under the Act without any limitations under clauses (c), (e), (f) and
(h) of Rule 144 or (iii) such time as all the Debentures or Exchange Debentures,
as applicable, covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement (in any such case, such period
being called the "Shelf Registration Period"); PROVIDED, HOWEVER, that the
Company will have the ability to suspend the availability of the Shelf
Registration Statement during any consecutive 365-day period for up to two
periods of up to 45 consecutive days, but no more than an aggregate of 60 days
during any 365-day period (a "Suspension"), PROVIDED that the Company notifies
the holders of the Debentures covered thereby of any such Suspension as required
by Section 4(c)(2)(iii).
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:
(a) The Company shall furnish to the 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 shall not include in any such
document, when so filed with the Commission, any material as to which
the Initial Purchaser may reasonably object.
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(b) The Company agrees 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 the rules and regulations thereunder, (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 include an untrue statement of
a material fact or omit to state a material fact necessary in order to
make the statements, in light of the circumstances under which they
were made, not misleading.
(c) (1) The Company shall notify the Initial Purchaser 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 notice in writing:
(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; and
(ii) of any request by the Commission for amendments
or supplements to the Registration Statement or the Prospectus
included therein or for additional information.
(2) The Company shall notify the Initial Purchaser 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 which has provided in writing to the
Company a telephone or facsimile number and address for notices, and,
if requested by you or
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any such Holder or Exchanging Dealer, confirm such notice in writing of
the inability to use the Shelf Registration Statement for resales of
the Debentures or the Exchange Debentures as a result of:
(i) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose;
(ii) 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;
(iii) a Suspension; or
(iv) the happening of any event that requires the
making of any changes in the Registration Statement or the
Prospectus so that, as of such date, the statements therein
are not misleading and do not omit to state a material fact
required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of
the circumstances under which they were made) not misleading
(which notice shall be accompanied by an instruction to
suspend the use of the Prospectus until the requisite changes
have been made).
(d) The Company shall use its best efforts to obtain the
withdrawal of any order suspending the effectiveness 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) The Company shall, during the Shelf Registration Period,
deliver to each Holder of securities included within the coverage of
any Shelf
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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 the Company consents to the use
of the Prospectus or any amendment or supplement thereto by each of the
selling Holders 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 thereto (including those incorporated
by reference).
(h) 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 Debentures
received by it pursuant to the Registered Exchange Offers; and the
Company consents to the use of the Prospectus or any amendment or
supplement thereto by any such Exchanging Dealer, as aforesaid.
(i) Prior to the Registered Exchange Offers or any other
offering of Debentures pursuant to any Registration Statement, the
Company shall use its best efforts to register or qualify, and shall
cooperate with the Holders of Debentures included therein and their
respective counsel in connection with the registration or qualification
of, such Debentures for offer and sale under the securities or blue sky
laws of such jurisdictions as any such Holder reasonably requests in
writing and do any and all other acts or things necessary or advisable
to enable the offer and sale in such jurisdictions of the Debentures
covered by such Registration Statement; PROVIDED, HOWEVER, that the
Company will not be required to qualify generally to do business in any
jurisdiction where it is not then
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so qualified or to take any action which would subject it to general
service of process or to taxation in any such jurisdiction where it is
not then so subject.
(j) Unless the applicable Debentures shall be in book-entry
only form, the Company shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing the
Debentures to be sold pursuant to any Registration Statement free of
any restrictive legends and in such authorized denominations and
registered in such names as Holders may request prior to sales of
Debentures pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by
paragraphs c(1)(ii) or (c)(2)(iii) above, the Company shall promptly
prepare 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 light of the circumstances
under which they were made, not misleading.
(l) Not later than the effective date of any Shelf
Registration Statement hereunder, the Company shall use its best
efforts to cause The Depository Trust Company ("DTC") to remove (i)
from any existing CUSIP number assigned to the Debentures or Exchange
Debentures, as the case may be, any designation indicating that such
Debentures 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 Debentures. Upon compliance with the
foregoing requirements of this Section 4(l), the Company shall provide
the Trustee with printed certificates for such Debentures, in a form
eligible for deposit with DTC.
(m) The Company shall use its 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
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an earnings statement satisfying the provisions of Section 11(a) of the
Act.
(n) The Company may require each Holder of Debentures to be
sold pursuant to any Shelf Registration Statement to furnish to the
Company such information regarding such Holder and the distribution of
such Debentures by such Holder as the Company may from time to time
reasonably require for inclusion in such Registration Statement.
(o) The Company shall, if requested by the Managing
Underwriters or the Holders of Debentures covered by such Shelf
Registration Statement, promptly incorporate in a Prospectus supplement
or post-effective amendment to a Shelf Registration Statement, such
information with respect to such Managing Underwriters and Holders as
such Managing Underwriters or Holders reasonably request to include
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.
(p) In the case of any Shelf Registration Statement, the
Company shall enter into such agreements (including underwriting
agreements) and take all other appropriate actions in order to expedite
or facilitate the registration or the disposition of the Debentures or
the Exchange Debentures, 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 the Majority Holders and the Managing
Underwriters, if any) with respect to all parties to be indemnified
pursuant to Section 6.
(q) In the case of any Shelf Registration Statement, the
Company shall (i) make reasonably available for inspection by the
Holders of Debentures to be registered thereunder, any underwriter
participating in any distribution 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, pertinent corporate documents and properties of the Company
and its subsidiaries as is customary for
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similar due diligence examinations; (ii) cause the Company's officers,
directors and employees and any relevant Trustee to supply at the
Company's expense all relevant information reasonably requested by such
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, 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, attorney, accountant or agent (and,
at the request of the Company each of the foregoing shall enter into a
confidentiality agreement in form and substance reasonably satisfactory
to the Company prior to the delivery of any such information), unless
such disclosure is made in connection with a court proceeding or
required by law, or 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 Debentures registered thereunder and the underwriters,
if any, in form, substance and scope as are customarily made by issuers
to underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase
Agreement; (iv) 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 taking into account the opinions delivered
in connection with the Initial Placement and such other matters as may
be reasonably requested by such Holders and underwriters (it being
agreed that the matters to be covered by such counsel shall include,
without limitation, as of the date of the opinions and as of the
effective date of the Registration Statement or most recent
post-effective amendment thereto, as the case may be, a statement by
such counsel regarding the absence from such Registration Statement and
the Prospectus included therein, as then amended or supplemented,
including the documents incorporated by reference therein, of an untrue
statement of a material fact or the omission to
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state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading); (v) 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 (and, if necessary, shall use its best efforts to obtain such
letters and updates from any independent certified public accountants
of any business acquired by the Company for which financial statements
and financial data are, or are required to be, included in the Shelf
Registration Statement), addressed to each selling Holder of Debentures
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 and the Managing Underwriters, if any, including those
to evidence compliance with Section 4(k) and with any customary
conditions 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 Shelf Registration Statement and each
post-effective amendment thereto and (B) each closing under any
underwriting or similar agreement as and to the extent required
thereunder.
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 and, in the event of any Shelf Registration Statement, will
reimburse the Holders of Debentures registered thereunder for the reasonable
fees and disbursements of one firm or counsel designated by the Majority Holders
to act as counsel for such Holders in connection therewith, and, in the case of
any Exchange Offer Registration Statement, will reimburse the Initial Purchaser
for the reasonable fees and disbursements of counsel acting in connection
therewith.
6. INDEMNIFICATION AND CONTRIBUTION. (a) In connection with
any Registration Statement, the Company agrees to indemnify and hold harmless
each Holder of Debentures or Exchange Debentures, as the case may be, covered
thereby (including the Initial Purchaser and, with
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respect to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer), the directors, officers, employees and agents of each such
Holder and each person who controls any such Holder 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 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 not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that (i) 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 any such Holder specifically for inclusion
therein and (ii) such indemnity with respect to any preliminary Prospectus shall
not inure to the benefit of any Holder (or any person controlling such Holder)
from whom the person asserting any such loss, claim, damage or liability
purchased the Debentures or Exchange Debentures, as the case may be, which are
the subject thereof if such person did not receive a copy of the Prospectus (or
the Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Debentures or
Exchange Debentures, as the case may be, in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in the preliminary Prospectus was corrected in the Prospectus (or the
Prospectus as supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
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The Company also agrees to indemnify or contribute to Losses
of, as provided in Section 6(d), any underwriters of Debentures or Exchange
Debentures registered under a Shelf Registration Statement, their officers and
directors and each person who controls such underwriters on substantially the
same basis as that of the indemnification of the Initial Purchaser and the
selling Holders provided in this Section 6(a) and shall, if requested by any
underwriter, enter into an underwriting agreement reflecting such agreement, as
provided in Section 4(p) hereof.
(b) Each Holder of Debentures or Exchange Debentures covered
by a Registration Statement (including the Initial Purchaser and, with respect
to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer) severally agrees to indemnify and hold harmless (i) the
Company, (ii) each of the Company's directors, (iii) each of the Company's
officers or any Trustee who signs such Registration Statement and (iv) 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 which 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 6, notify the indemnifying party in writing of the
commencement thereof; but the failure to so notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above or paragraph
(d) below 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). The indemnifying
party shall be entitled to appoint 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
18
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint 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 (and local counsel) if (i) the use of counsel chosen by the
indemnifying party to represent the 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,
after consultation with legal counsel of its choosing, that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. 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. Any
indemnifying party shall not be liable for any settlement, compromise or consent
of any proceeding effected by the indemnified party without the written consent
of the indemnifying party (which consent shall not be unreasonably witheld),
unless the indemnifying party has waived its right to appoint counsel to
represent the indemnified party in such proceeding in which case the indemnified
party may effect such a settlement, compromise or consent without the consent of
the indemnifying party.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable to or
19
insufficient to hold harmless an indemnified party for any reason, then each
applicable indemnifying party, in lieu of indemnifying such indemnified 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 the same) (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 the Initial Purchaser be responsible,
in the aggregate, for any amount in excess of the purchase discount or
commission applicable to such Debenture, or in the case of an Exchange
Debenture, applicable to the Debenture which was exchangeable into such Exchange
Debenture, as set forth on the cover page of the Final Memorandum, nor shall any
underwriter be responsible for any amount in excess of the underwriting discount
or commission applicable to the Debentures or Exchange Debentures purchased by
such underwriter under the Registration Statement which resulted in such Losses.
If the allocation provided by 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 on the cover page of the Final Memorandum.
Benefits received by the Initial Purchaser 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 excess, if any, of the value to such Holder of receiving
Debentures or Exchange Debentures, as applicable, registered under the Act over
the value to such Holder of holding Debentures not 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.
20
Relative fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the indemnifying party,
on the one hand, or by the indemnified party, on the other hand. The parties
agree that it would not be just and equitable if contribution were determined by
pro rata allocation 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 6, 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 6 will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder,
the Company or any of the officers, directors, trustees or controlling persons
referred to in Section 6 hereof, and will survive the sale by a Holder of
securities covered by a Registration Statement.
7. SPECIAL INTEREST UNDER CERTAIN CIRCUMSTANCES. (a)
Additional interest (the "Special Interest") shall become payable in respect of
the 2027 Debentures or the 2097 Debentures, as the case may be, as follows if
any of the following events occur with respect to such Debentures (each such
event in clauses (i) through (iv) below, a "Registration Default"):
(i) if the Exchange Offer Registration Statement is not filed
with the Commission on or prior to the 90th day following the Closing Date;
(ii) if neither the Exchange Offer Registration Statement is
declared effective nor (if the Exchange Offers are not permitted as described in
Section 3) the Shelf
21
Registration Statement is filed with the Commission on or prior to the 180th day
following the Closing Date;
(iii) if the Registered Exchange Offer with respect to such
Debentures is not consummated or the Shelf Registration Statement with respect
to such Debentures is not declared effective on or prior to the 210th day
following the Closing Date; or
(iv) if, after the 210th day following the Closing Date, and
after the Shelf Registration Statement is declared effective, the Company fails
to keep the Shelf Registration Statement continuously effective (except as
permitted by the proviso to Section 3(b)) then from such time as the Shelf
Registration Statement is no longer effective until the earlier of (i) the date
that the Shelf Registration Statement is again deemed effective and (ii) the
date that is the earliest of (x) the third anniversary of the Closing Date (or
until the first anniversary of the effective date of the Shelf Registration
Statement if the Shelf Registration Statement is filed at the request of the
Initial Purchaser), (y) the time when the Debentures registered thereunder can
be sold by non-Affiliates pursuant to Rule 144 under the Act without any
limitations under clauses (c), (e), (f) and (h) of Rule 144, or (z) the date as
of which all of such Debentures are sold pursuant to the Shelf Registration
Statement.
Special Interest shall accrue on the 2027 Debentures or the
2097 Debentures, as the case may be, over and above the interest rate set forth
in the Indenture applicable to such Debentures following the occurrence of each
Registration Default set forth in clauses (i), (ii), (iii) and (iv) above from
and including the next day following each such Registration Default, in each
case at a rate equal to 0.25% per annum of the principal amount of such
Debentures (0.50% thereof if pursuant to clause (iv) the Shelf Registration
Statement is no longer effective for 30 days or more) payable in cash
semiannually in arrears; PROVIDED, HOWEVER, that the aggregate amount of Special
Interest payable with respect to the 2027 Debentures or the 2097 Debentures
pursuant this Section 7(a) will in no event exceed 0.75% per annum of the
principal amount of such Debentures. The Special Interest attributable to each
Registration Default shall cease to accrue from the date such Registration
Default is cured. Upon (a) the filing of the Exchange Offer Registration
Statement after the 90-day period described in clause (i) above, (b) the
effectiveness
22
of the Exchange Offer Registration Statement or the filing of the Shelf
Registration Statement after the 180-day period described in clause (ii) above
or (c) the consummation of the Exchange Offer for such Debentures or the
effectiveness of a Shelf Registration Statement, as the case may be, after the
210-day period described in clause (iii) above, Special Interest payable on such
Debentures as a result of the applicable Registration Default will cease to
accrue. For purposes of the preceding sentence, the curing of a Registration
Default by the means described in clause (b) above shall constitute a cure of
the Registration Defaults described in clauses (i) and (ii) above, and the
curing of a Registration Default by the means described in clause (c) above
shall constitute a cure of the Registration Defaults described in clauses (i),
(ii) and (iii) above.
(b) Any amounts of Special Interest due pursuant to the
foregoing paragraphs will be payable in cash on February 1 and August 1 of each
year to the holders of record on the preceding January 15 and July 15,
respectively.
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 Debentures 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 Debentures (or, after the consummation of any Exchange Offer
in accordance with Section 2 hereof, of Exchange Debentures); PROVIDED, HOWEVER,
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 the Initial Purchaser. 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
Debentures are being sold pursuant to a
23
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 Debentures 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:
(1) 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 Salomon Brothers Inc;
(2) if to you, initially at the address set forth in
the Purchase Agreement; and
(3) 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 Purchaser 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 Debentures and/or Exchange
Debentures. The Company hereby agrees to extend the benefits of this Agreement
to any Holder of Debentures and/or Exchange Debentures and any such Holder may
specifically 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
24
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 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.
(i) SECURITIES HELD BY THE COMPANY, ETC. Whenever the consent
or approval of Holders of a specified percentage of principal amount of
Debentures or Exchange Debentures is required hereunder, Debentures or Exchange
Debentures, as applicable, held by the Company or its Affiliates (other than
subsequent Holders of Debentures or Exchange Debentures if such subsequent
Holders are deemed to be Affiliates solely by reason of their holdings of such
Debentures or Exchange Debentures) shall not be counted in determining whether
such consent or approval was given by the Holders of such required percentage.
25
Please confirm that the foregoing correctly sets forth the
agreement between the Company and you.
Very truly yours,
THE XXXXXXX-XXXXXXXX COMPANY,
by: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President-
Finance, Treasurer and
Chief Financial Officer
Accepted as of the date hereof
SALOMON BROTHERS INC
by: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Associate
26
Annex A
-------
Each broker-dealer that receives Exchange Debentures for its
own account pursuant to the Exchange Offer must acknowledge that it will deliver
a prospectus meeting the requirements of the Securities Act in connection with
any resale of such Exchange Debentures. The 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 Debentures
received in exchange for Debentures acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Company has agreed
that, starting on the Expiration Date (as defined herein) and ending on the
close of business 180 days after the Expiration Date, it will make this
Prospectus available to any broker-dealer for use in connection with any such
resale. See "Plan of Distribution".
27
Xxxxx X
-------
Each broker-dealer that receives Exchange Debentures for its
own account in exchange for Debentures, where such Debentures 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 meeting the
requirements of the Securities Act in connection with any resale of such
Exchange Debentures. See "Plan of Distribution".
28
Annex C
Plan of Distribution
--------------------
Each broker-dealer that receives Exchange Debentures for its
own account pursuant to the Exchange Offer must acknowledge that it will deliver
a prospectus meeting the requirements of the Securities Act in connection with
any resale of such Exchange Debentures. 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 Debentures received in exchange for Debentures where
such Debentures 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 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.
The Company will not receive any proceeds from any sale of
Exchange Debentures by broker-dealers. Exchange Debentures received by
broker-dealers for their own account pursuant to the 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 Exchange
Debentures 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 Debentures. Any broker-dealer that resells
Exchange Debentures that were received by it for its own account pursuant to the
Exchange Offer and any broker or dealer that participates in a distribution of
such Exchange Debentures may be deemed to be an "underwriter" within the meaning
of the Securities Act and any profit of any such resale of Exchange Debentures
and any commissions or concessions received by any such persons may be deemed to
be underwriting compensation under the Securities Act. The Letter of Transmittal
states that by acknowledging that it will deliver and by delivering a prospectus
meeting the requirements of the Securities Act, 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
29
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 Exchange Offer (including
the expenses of one counsel for the holders of the Debentures) other than
commissions or concessions of any brokers or dealers and will indemnify the
holders of the Debentures (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.]
30
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 Debentures. If the undersigned is a broker-dealer that
will receive Exchange Debentures for its own account in exchange for Debentures,
it represents that the Debentures to be exchanged for Exchange Debentures 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 Debentures; 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 Securities Act.
31
Annex E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
The Xxxxxxx-Xxxxxxxx Company
000 Xxxxxxxx Xxxxxx, X.X. (12th Floor)
Cleveland, OH 44115
The Depository Trust Company
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Re: 7.375% Debentures Due 2027
7.450% Debentures Due 2029
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission
has declared effective a Registration Statement on Form S-3 under the Securities
Act of 1933 with regard to all of the Debentures referenced above. Accordingly,
there is no longer any restriction as to whom such Debentures may be sold and
any restrictions on the CUSIP designation are no longer appropriate and may be
removed. We understand that upon receipt of this letter, DTC will remove any
stop or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can be of
further assistance.
THE XXXXXXX-XXXXXXXX COMPANY,
by:
_____________________________
Authorized Officer
