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EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT (this
"Agreement"), dated as of July 22, 1997, between
P. H. GLATFELTER COMPANY, a Pennsylvania
corporation (the "Company"), and BEAR, XXXXXXX &
CO. INC. and BT SECURITIES CORPORATION
(collectively, the "Initial Purchasers").
This Agreement is being entered into in connection with the
Purchase Agreement, dated the date hereof, between the Company and the Initial
Purchasers (the "Purchase Agreement"), which provides for the sale by the
Company to the Initial Purchasers of $150,000,000 aggregate principal amount of
the Company's 6 7/8% Notes Due 2007 (the "Notes"). In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Company has agreed
to provide the registration rights set forth in this Agreement for the benefit
of the Initial Purchasers and their direct and indirect transferees. The
execution and delivery of this Agreement is a condition to the obligation of the
Initial Purchasers to purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the
following terms shall have the following meanings:
"Additional Interest" shall have the meaning set
forth in Section 4(a) hereof.
"Advice" shall have the meaning set forth in the last
paragraph of Section 5 hereof.
"Agreement" shall have the meaning set forth in the
first introductory paragraph hereto.
"Applicable Period" shall have the meaning set forth
in Section 2(b) hereof.
"Closing Date" shall mean the Closing Date set forth
in the Purchase Agreement.
"Company" shall have the meaning set forth in the
first introductory paragraph hereto.
"Consummate" or "Consummated" shall mean, for
purposes of this Agreement with respect to the Exchange Offer,
the delivery by the Company to the Security Registrar under
the Indenture of Exchange Notes in the same aggregate
principal amount as the aggregate principal amount of Notes
that were validly tendered by
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Holders thereof in accordance with the terms of the Exchange
Offer.
"Effectiveness Date" shall mean, with respect to any
Registration Statement, (a) if no Registration Statement has
been filed by the Company pursuant to this Agreement, the
120th calendar day after the Issue Date and (b) in each other
case (which may be applicable notwithstanding the consummation
of the Exchange Offer), the 120th calendar day after the
delivery of Shelf Notice.
"Effectiveness Period" shall have the meaning set
forth in Section 3(a) hereof.
"Event Date" shall have the meaning set forth in
Section 4(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the SEC
promulgated thereunder.
"Exchange Notes" shall have the meaning set forth in
Section 2(a) hereof.
"Exchange Offer" shall have the meaning set forth in
Section 2(a) hereof.
"Exchange Registration Statement" shall have the
meaning set forth in Section 2(a) hereof.
"Holder" shall mean any holder of a Registrable Note
or Registrable Notes.
"Indemnified Person" shall have the meaning set forth
in Section 7(c) hereof.
"Indemnifying Person" shall have the meaning set
forth defined in Section 7(c) hereof.
"Indenture" shall mean the Indenture, dated as of
July 22, 1997, between the Company and The Bank of New York,
as trustee, pursuant to which the Notes are being issued, as
amended or supplemented from time to time in accordance with
the terms thereof.
"Initial Purchasers" shall have the meaning set forth
in the first introductory paragraph hereto.
"Inspectors" shall have the meaning set forth in
Section 5(o) hereof.
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"Issue Date" shall mean the date on which the
original Notes were sold to the Initial Purchasers pursuant to
the Purchase Agreement.
"Majority Holders" shall have the meaning set forth
in Section 3(c) hereof.
"NASD" shall have the meaning set forth in Section
5(s) hereof.
"Notes" shall have the meaning set forth in the
second introductory paragraph hereto.
"Participant" shall have the meaning set forth in
Section 7(a) hereof.
"Participating Broker-Dealer" shall have the meaning
set forth in Section 2(b) hereof.
"Person" shall mean an individual, trustee,
corporation, partnership, limited liability company, joint
stock company, trust, unincorporated association, union,
business association, firm or other legal entity.
"Private Exchange" shall have the meaning set forth
in Section 2(b) hereof.
"Private Exchange Notes" shall have the meaning set
forth in Section 2(b) hereof.
"Prospectus" shall mean the prospectus included in
any Registration Statement (including any prospectus subject
to completion and a prospectus that includes any information
previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, and all other
amendments and supplements to the Prospectus, with respect to
the terms of the offering of any portion of the Registrable
Notes covered by such Registration Statement including
post-effective amendments, and all material incorporated by
reference or deemed to be incorporated by reference in such
Prospectus.
"Purchase Agreement" shall have the meaning set forth
in the second introductory paragraph hereto.
"Records" shall have the meaning set forth in Section
5(o) hereof.
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"Registrable Notes" shall mean each Note upon
original issuance of the Notes and at all times subsequent
thereto, each Exchange Note as to which Section 2(c)(iv)
hereof is applicable upon original issuance and at all times
subsequent thereto and each Private Exchange Note upon
original issuance thereof and at all times subsequent thereto,
until in the case of any such Note, Exchange Note or Private
Exchange Note, as the case may be, the earliest to occur of
(i) a Registration Statement (other than, with respect to any
Exchange Note as to which Section 2(c)(iv) hereof is
applicable, the Exchange Registration Statement) covering such
Note, Exchange Note or Private Exchange Note, as the case may
be, has been declared effective by the SEC and such Note
(unless such Note was not tendered for exchange by the Holder
thereof), Exchange Note or Private Exchange Note, as the case
may be, has been disposed of in accordance with such effective
Registration Statement, (ii) such Note, Exchange Note or
Private Exchange Note, as the case may be, is sold in
compliance with Rule 144, or (iii) such Note, Exchange Note or
Private Exchange Note, as the case may be, ceases to be
outstanding for purposes of the Indenture.
"Registration Statement" shall mean any registration
statement of the Company, including, but not limited to, the
Exchange Registration Statement, that covers any of the
Registrable Notes pursuant to the provisions of this
Agreement, including the Prospectus, amendments and
supplements to such registration statement, including
post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by
reference in such registration statement.
"Rule 144" shall mean Rule 144 promulgated under the
Securities Act, as such Rule may be amended from time to time,
or any similar rule (other than Rule 144A) or regulation
hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers
and sales by subsequent holders that are not affiliates of an
issuer of such securities being free of the registration and
prospectus delivery requirements of the Securities Act.
"Rule 144A" shall mean Rule 144A promulgated under
the Securities Act, as such Rule may be amended from time to
time, or any similar rule (other than Rule 144) or regulation
hereafter adopted by the SEC.
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"Rule 415" shall mean Rule 415 promulgated under the
Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the
SEC.
"SEC" shall mean the Securities and Exchange
Commission.
"Securities Act" shall mean the Securities Act of
1933, as amended, and the rules and regulations of the SEC
promulgated thereunder.
"Shelf Notice" shall have the meaning set forth in
Section 2(c) hereof.
"Shelf Registration" shall have the meaning set forth
in Section 3(a) hereof.
"TIA" shall mean the Trust Indenture Act of 1939, as
amended.
"Trustee" shall mean the trustee under the Indenture
and, if existent, the trustee under any indenture governing
the Exchange Notes and Private Exchange Notes (if any).
"Underwritten registration or underwritten offering"
shall mean a registration in which securities of the Company
are sold to an underwriter for reoffering to the public.
SECTION 2. Exchange Offer. (a) The Company agrees to use its
best efforts to file with the SEC an offer to exchange (the "Exchange Offer")
any and all of the Registrable Notes (other than the Private Exchange Notes, if
any) for a like aggregate principal amount of debt securities of the Company,
which are identical in all material respects to the Notes (the "Exchange Notes")
(and which are entitled to the benefits of the Indenture or a trust indenture
which is identical in all material respects to the Indenture (other than such
changes to the Indenture or any such identical trust indenture as are necessary
to comply with any requirements of the SEC to effect or maintain the
qualification thereof under the TIA) and which, in either case, has been
qualified under the TIA), except that the Exchange Notes (other than Private
Exchange Notes, if any) (i) shall contain no restrictive legend thereon and (ii)
shall not contain any requirement by the Company to pay Additional Interest
(other than with respect to periods prior to the issuance of such Exchange
Notes). The Exchange Offer shall be registered under the Securities Act on the
appropriate form (the "Exchange Registration Statement") and shall comply with
all applicable
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tender offer rules and regulations under the Exchange Act. The Company agrees to
use its best efforts to (x) cause the Exchange Registration Statement to be
declared effective under the Securities Act on or before the Effectiveness Date;
(y) keep the Exchange Offer open for at least 30 calendar days (or longer if
required by applicable law) after the date that notice of the Exchange Offer is
mailed to Holders; and (z) Consummate the Exchange Offer on or prior to the
150th day following the Issue Date. If after such Exchange Registration
Statement is declared effective by the SEC, the Exchange Offer or the issuance
of the Exchange Notes thereunder is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court, such Exchange Registration Statement shall be deemed not to
have become effective for purposes of this Agreement. Each Holder who
participates in the Exchange Offer will be required to represent that any
Exchange Notes received by it will be acquired in the ordinary course of its
business, that at the time of the consummation of the Exchange Offer such Holder
will have no arrangement or understanding with any Person to participate in any
distribution of the Exchange Notes in violation of the provisions of the
Securities Act, and that such Holder is not an affiliate of the Company within
the meaning of the Securities Act. Upon consummation of the Exchange Offer in
accordance with this Section 2, the Company shall have no further obligation to
register Registrable Notes (other than Private Exchange Notes and other than in
respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies)
pursuant to Section 3 hereof. No securities other than the Exchange Notes shall
be included in the Exchange Registration Statement.
(b) The Company shall include within the Prospectus contained
in the Exchange Registration Statement a section entitled "Plan of
Distribution," which section shall be reasonably acceptable to the Initial
Purchasers, and which shall contain a summary statement of the positions taken
or policies made by the Staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such
broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"), whether
such positions or policies have been publicly disseminated by the Staff of the
SEC or such positions or policies, in the judgment of counsel for the Initial
Purchasers, represent the prevailing views of the Staff of the SEC, including a
statement that any broker-dealer who receives Exchange Notes for Registrable
Notes pursuant to the Exchange Offer may be deemed a statutory underwriter and
must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes, but such "Plan of
Distribution" section shall not name any such Participating Broker-Dealer or
disclose the amount of Notes held
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by any such Participating Broker-Dealer except to the extent required by the SEC
as a result of a change in policy after the date of this Agreement.
If any Participating Broker-Dealer participates in the
Exchange Offer and notifies the Company or causes the Company to be notified in
writing that it is a Participating Broker-Dealer within 30 days after the last
date for which exchanges are accepted pursuant to the Exchange Offer, the
Company shall use its reasonable efforts to keep the Exchange Registration
Statement effective and to amend and supplement the Prospectus contained
therein, in order to permit such Prospectus to be lawfully delivered by any
Participating Broker-Dealer subject to the prospectus delivery requirements of
the Securities Act for such period of time as is necessary to comply with
applicable law in connection with any resale of the Exchange Notes; provided,
however, that such period shall not exceed 180 days after the last date for
which exchanges are accepted pursuant to the Exchange Offer (or such shorter
period when all Exchange Notes received by Participating Broker-Dealers in
exchange for Registrable Notes acquired for their own account as a result of
market-making or other trading activities have been disposed of by such
Participating Broker-Dealers or such longer period if extended pursuant to the
last paragraph of Section 5 hereof) (the "Applicable Period"); and Participating
Broker-Dealers shall not be authorized by the Company to, and shall not, deliver
such Prospectus after such period in connection with resales contemplated by
this Section 2(b) or otherwise.
If, prior to the last date for which exchanges are accepted
pursuant to the Exchange Offer, the Initial Purchasers hold any Notes acquired
by them and having the status of an unsold allotment in the initial
distribution, the Company shall, upon the request of any of the Initial
Purchasers, simultaneously with the delivery of the Exchange Notes in the
Exchange Offer issue and deliver to the Initial Purchasers in exchange (the
"Private Exchange") for such Notes held by the Initial Purchasers a like
principal amount of debt securities of the Company that are identical in all
material respects to the Exchange Notes (the "Private Exchange Notes") (and
which are issued pursuant to the same indenture as the Exchange Notes) except
for the placement of a restrictive legend on such Private Exchange Notes. The
Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
Interest on the Exchange Notes and the Private Exchange Notes
will accrue from the last interest payment date on which interest was paid on
the Notes surrendered in exchange therefor or, if no interest has been paid on
the Notes, from July 22, 1997.
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In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York;
(iii) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last business day
on which the Exchange Offer shall remain open; and
(iv) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Company shall:
(i) accept for exchange all Notes or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer or
the Private Exchange;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for exchange by
the Company; and
(iii) issue, and cause the Trustee to authenticate and deliver
promptly to each Holder of Notes, either Exchange Notes or Private
Exchange Notes, as the case may be, equal in principal amount to the
Notes of such Holder so accepted for exchange.
The Exchange Notes and the Private Exchange Notes may be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture, which in either event shall provide that (A) the
Exchange Notes shall not be subject to the transfer restrictions applicable to
the Notes or the requirement of the Company to pay Additional Interest thereon
and (B) the Private Exchange Notes shall be subject to the transfer restrictions
applicable to the Notes. The Indenture or such indenture shall provide that the
Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent
together on all matters as one class and that none of the Exchange Notes, the
Private Exchange Notes or the Notes will have the right to vote or consent as a
separate class on any matter.
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(c) If (i) because of any change in law or in currently
prevailing interpretations of the Staff of the SEC, the Company is not permitted
to effect an Exchange Offer, (ii) the Exchange Offer is not Consummated within
150 days of the Issue Date, (iii) any holder of Private Exchange Notes so
requests at any time after the consummation of the Private Exchange or (iv) in
the case of any Holder that participates in the Exchange Offer, such Holder does
not receive Exchange Notes on the date of the exchange that may be sold without
restriction under federal securities laws (other than due solely to the status
of such Holder as an affiliate of the Company within the meaning of the
Securities Act), then the Company shall promptly deliver written notice thereof
(the "Shelf Notice") to the Trustee and, in the case of clauses (i) and (ii),
all Holders, in the case of clause (iii), the Holders of the Private Exchange
Notes and, in the case of clause (iv), the affected Holder, and shall file a
Shelf Registration pursuant to Section 3 hereof.
SECTION 3. Shelf Registration. If a Shelf Notice is delivered as
contemplated by Section 2(c) hereof, then:
(a) Shelf Registration. The Company shall file with the SEC a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all the Registrable Notes (the "Shelf Registration"). The
Shelf Registration shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Notes for resale by Holders in the manner or
manners designated by them. The Company shall not permit any securities other
than the Registrable Notes to be included in the Shelf Registration.
The Company shall use its best efforts to cause the Shelf
Registration to be declared effective under the Securities Act on or prior to
the Effectiveness Date and shall use its reasonable efforts to keep the Shelf
Registration continuously effective under the Securities Act until the date
which is two years from the Issue Date, subject to extension pursuant to the
last paragraph of Section 5 hereof (the "Effectiveness Period"), or such shorter
period ending when all Registrable Notes covered by the Shelf Registration have
been sold in the manner set forth and as contemplated in the Shelf Registration.
(b) Withdrawal of Stop Orders. If the Shelf Registration
ceases to be effective for any reason at any time during the Effectiveness
Period (other than because of the sale of all the securities registered
thereunder), the Company shall use its best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof.
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(c) Supplements and Amendments. The Company shall promptly
supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act, or if reasonably
requested by the Holders of a majority in aggregate principal amount (the
"Majority Holders") of the Registrable Notes covered by such Registration
Statement or by any underwriter of such Registrable Notes.
SECTION 4. Additional Interest. (a) The Company and the Initial
Purchasers agree that the Holders of Registrable Notes will suffer damages if
the Company fails to fulfill its obligations under Section 2 or Section 3 hereof
and that it would not be feasible to ascertain the extent of such damages with
precision. The Company agrees under the Notes and the Indenture to pay
additional interest on the Notes ("Additional Interest"), as liquidated damages,
under the circumstances and to the extent set forth below:
(i) if (A) neither the Exchange Registration Statement nor
the Shelf Registration is declared effective by the SEC on or prior to
the relevant Effectiveness Date or (B) notwithstanding that the Company
has Consummated or will Consummate the Exchange Offer, the Company is
required to file a Shelf Registration and such Shelf Registration is
not declared effective by the SEC on or prior to the Effectiveness Date
in respect of such Shelf Registration, then, for the first 90 days
commencing on the day after such Effectiveness Date, Additional
Interest shall accrue on the principal amount of the Notes included or
which should have been included in such Registration Statement over and
above the stated interest at a rate of 0.25% per annum, such Additional
Interest rate increasing by an additional 0.25% per annum at the
beginning of each subsequent 90-day period; and
(ii) if (A) the Company has not exchanged Exchange Notes for
all Notes validly tendered in accordance with the terms of the Exchange
Offer on or prior to the 150th day after the Issue Date or (B) if
applicable, the Shelf Registration has been declared effective and such
Shelf Registration ceases to be effective at any time during the
Effectiveness Period (other than after such time as all Notes have been
disposed of thereunder), then Additional Interest shall accrue on the
principal amount of the Notes over and above the stated interest at a
rate of 0.25% per annum for the first 90 days commencing on (x) the
151st day after the Issue Date with respect to the Notes validly
tendered and not exchanged by the Company, in the case of (A) above, or
(y) the day such Shelf Registration ceases to
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be effective in the case of (B) above (it being understood and agreed
that, notwithstanding any provision to the contrary, so long as any
Note which is the subject of a Shelf Notice is then covered by an
effective Shelf Registration Statement, no Additional Interest shall
accrue on such Note), such Additional Interest rate increasing by an
additional 0.25% per annum at the beginning of each subsequent 90-day
period;
provided, however, that the Additional Interest rate on any affected Note may
not exceed at any one time in the aggregate 1.00% per annum; provided further,
however, that (1) upon the effectiveness of the Exchange Registration Statement
or the Shelf Registration (in the case of clause (i) of this Section 4(a)) or
(2) upon the exchange of Exchange Notes for all Notes validly tendered and not
validly withdrawn (in the case of clause (ii)(A) of this Section 4(a)) or upon
the effectiveness of the Shelf Registration which had ceased to remain effective
(in the case of (ii)(B) of this Section 4(a)), Additional Interest on the
affected Notes as a result of such clause (or the relevant subclause thereof),
as the case may be, shall cease to accrue.
(b) As provided in the Indenture, the Company shall notify the
Trustee within three business days after each and every date on which an event
occurs in respect of which Additional Interest is required to be paid (an "Event
Date") any amounts of Additional Interest will be payable to the Holders of
affected Notes in cash semiannually on each January 15 and July 15 (to the
holders of record on the January 1 and July 1 immediately preceding such dates),
commencing with the first such date occurring after any such Additional Interest
commences to accrue the amount of Additional Interest will be determined by
multiplying the applicable Additional Interest rate by the principal amount of
the affected Registrable Notes of such Holders, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
SECTION 5. Registration Procedures. In connection with the filing
of any Registration Statement pursuant to Sections 2 or 3 hereof, the Company
shall effect such registration(s) to permit the sale of the securities covered
thereby in accordance with the intended method or methods of disposition
thereof, and pursuant thereto and in connection with any Registration Statement
filed by the Company hereunder, the Company shall:
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(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2 or 3 hereof, to use
its best efforts to cause each such Registration Statement to become
effective and to use its reasonable efforts to cause such Registration
Statement to remain effective as provided herein; provided, however,
that, if (i) such filing is pursuant to Section 3 hereof, or (ii) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Company shall, if requested, furnish to and afford the
Holders of the Registrable Notes covered by such Registration Statement
or each such Participating Broker-Dealer, as the case may be, one
counsel selected by the Majority Holders (the "Majority Counsel") and
the managing underwriters of an underwritten offering (and their
counsel, if any) of Registrable Notes, if any, a reasonable opportunity
to review copies of all such documents (including copies of any
documents to be incorporated by reference therein and all exhibits
thereto) proposed to be filed (in each case at least five business days
prior to such filing), provided that the Company shall only be liable
for the fees and expenses of such counsel to the extent provided in
Section 6 hereof. The Company shall not file any Registration Statement
or Prospectus or any amendments or supplements thereto in respect of
which the Holders must be afforded an opportunity to review prior to
the filing of such document, if the Majority Holders of the Registrable
Notes covered by such Registration Statement, or any such Participating
Broker-Dealer, as the case may be, the Majority Counsel, or the
managing underwriters (or their counsel, if any), if any, shall
reasonably object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or Exchange
Registration Statement, as the case may be, as may be necessary to keep
such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period or until consummation of
the Exchange Offer, as the case may be; cause the related Prospectus to
be supplemented by any Prospectus supplement required by applicable
law, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Securities Act; and comply
with the provisions of the Securities Act and the Exchange Act
applicable to it with respect to the disposition of all securities
covered by such Registration Statement as so amended or in such
Prospectus as so supplemented and with respect to the subsequent resale
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of any securities being sold by a Participating Broker-Dealer covered
by any such Prospectus; the Company will be deemed not to have used its
reasonable efforts to cause the Exchange Offer Registration Statement
or any Shelf Registration Statement, as the case may be, to remain
effective during the Applicable Period or the Effectiveness Period, as
the case may be, if the Company voluntarily takes any action that would
result in the Holder of Registrable Notes covered thereby or
Participating Broker-Dealers seeking to sell Exchange Notes not being
able to sell such Registrable Notes or Exchange Notes, as the case may
be, during that period unless (i) such action is, in the reasonable
judgment of the Company, required by applicable law (including any
interpretation of the SEC) or (ii) such action is taken by the Company
in good faith and for valid business reasons (not including avoidance
of the Company's obligations hereunder), including the acquisition or
divestiture of assets, so long as the Company promptly complies with
the requirements of Section 5(k) hereof and the last paragraph of this
Section 5;
(c) if (i) a Shelf Registration is filed pursuant to Section 3
hereof, or (ii) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, notify
the selling Holders of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, the Majority Counsel and the
managing underwriters of an underwritten offering of Registrable Notes
and their counsel, if any, promptly (but in any event within three
business days) (A) when a Prospectus or any supplement thereto or
post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same
has become effective under the Securities Act (including in such notice
a written statement that any Holder may, upon request, obtain, at the
sole expense of the Company, one conformed copy of such Registration
Statement or post-effective amendment including financial statements
and schedules, documents incorporated or deemed to be incorporated by
reference and exhibits), (B) of the issuance by the SEC of any stop
order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any preliminary
prospectus or the initiation of any proceedings for that purpose, (C)
if at any time when a prospectus is required by the Securities Act to
be delivered in connection with sales of the Registrable Notes or
resales of Exchange Notes by Participating Broker-Dealers upon written
notice by any such Participating Broker-Dealer of a resale, the
representations
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and warranties of the Company contained in any agreement (including
any underwriting agreement), contemplated by Section 5(n) hereof cease
to be true and correct, (D) of the receipt by the Company of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or
the initiation or threatening of any proceeding for such purpose, (E)
of the happening of any event, the existence of any condition or any
information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in
or amendments or supplements to such Registration Statement,
Prospectus or documents so that, in the case of the Registration
Statement, it will not contain any 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 not misleading, and that in
the case of the Prospectus, it will not contain any 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,
and (F) of the determination by the Company that a post-effective
amendment to a Registration Statement would be appropriate;
(d) use its reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement or the
qualification (or exemption from qualification) of any of the
Registrable Notes or the Exchange Notes for sale in any jurisdiction as
soon as practicable;
(e) if a Shelf Registration is filed pursuant to Section 3 and
if requested by the managing underwriter or underwriters (if any), or
the Holders of a majority in principal amount of the Registrable Notes
being sold in connection with an underwritten offering, (i) promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters (if any), such
Holders, or counsel for any of them reasonably request to be included
therein, (ii) make all required filings of such prospectus supplement
or such post-effective amendment as soon as practicable after the
Company has received notification of the matters to be incorporated in
such prospectus supplement or post-effective
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amendment, and (iii) supplement or make amendments to such Registration
Statement;
(f) if (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, furnish
to each selling Holder of Registrable Notes and to each such
Participating Broker-Dealer who so requests, to the Majority Counsel
and to each managing underwriter of an underwritten public offering of
Registrable Notes and their counsel, if any, at the sole expense of the
Company, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all
documents incorporated or deemed to be incorporated therein by
reference and all exhibits;
(g) if (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, deliver
to each selling Holder of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, the Majority Counsel, and to the
underwriters, if any, and such underwriters' counsel, at the sole
expense of the Company, as many copies of the Prospectus or
Prospectuses (including each form of preliminary prospectus) and each
amendment or supplement thereto and any documents incorporated by
reference therein as such Persons may reasonably request; and, subject
to the last paragraph of this Section 5, the Company hereby consents to
the use of such Prospectus and each amendment or supplement thereto by
each of the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, and the underwriters
or agents, if any, and dealers (if any), in connection with the
offering and sale of the Registrable Notes covered by, or the sale by
Participating Broker-Dealers of the Exchange Notes pursuant to, such
Prospectus and any amendment or supplement thereto;
(h) prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, use its reasonable efforts to
register or qualify such Registrable Notes (and to cooperate with
selling
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Holders of Registrable Notes or each such Participating Broker-Dealer,
as the case may be, the Majority Counsel, the managing underwriter or
underwriters, if any, and such underwriters' counsel in connection with
the registration or qualification (or exemption from such
reregistration or qualification) of such Registrable Notes) for offer
and sale under the securities or Blue Sky laws of such jurisdictions
within the United States as any selling Holder, Participating
Broker-Dealer, or the managing underwriter or underwriters of an
underwritten offering of Registrable Notes shall reasonably request in
writing; provided, however, that where Exchange Notes held by
Participating Broker-Dealers or Registrable Notes are offered other
than through an underwritten offering, the Company agrees to cause its
counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 5(h); keep
each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to
be kept effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions
of the Exchange Notes held by Participating Broker-Dealers or the
Registrable Notes covered by the applicable Registration Statement;
provided, however, that the Company shall not be required to (A)
qualify generally to do business in any jurisdiction where it is not
then so qualified, (B) take any action that would subject it to general
service of process in any such jurisdiction where it is not then so
subject or (C) subject itself to taxation in excess of a nominal dollar
amount in any such jurisdiction where it is not then so subject;
(i) if a Shelf Registration is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
to be sold, which certificates shall not bear any restrictive legends
(except any customary legend borne by securities held through The
Depository Trust Company or any similar depository) and shall be in a
form eligible for deposit with The Depository Trust Company; and enable
such Registrable Notes to be in such denominations (consistent with the
provisions of the Indenture and the officers' certificate establishing
the form and terms of the Notes pursuant to the Indenture) and
registered in such names as the managing underwriter or underwriters,
if any, or Holders may reasonably request;
(j) use its reasonable efforts to cause the Registrable Notes
covered by the Registration Statement to
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be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the Holders thereof or the
underwriter or underwriters, if any, to dispose of such Registrable
Notes, except as may be required solely as a consequence of the nature
of a selling Holder's business, in which case the Company will
cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals;
(k) if (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, upon the
occurrence of any event contemplated by paragraph 5(c)(ii)(E) or 5
(c)(ii)(F) hereof, as promptly as practicable prepare and (subject to
Section 5(a) hereof) file with the SEC, at the sole expense of the
Company, a supplement or post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file
any other required document so that, as thereafter delivered to the
purchasers of the Registrable Notes being sold thereunder or to the
purchasers of the Exchange Notes to whom such Prospectus will be
delivered by a Participating Broker-Dealer, any such Prospectus will
not 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, in the light of the circumstances under which they
were made, not misleading;
(l) use its reasonable efforts to cause the Registrable Notes
covered by a Registration Statement or the Exchange Notes, as the case
may be, to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement or the
Exchange Notes, as the case may be, or the managing underwriter or
underwriters, if any;
(m) prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee
with certificates for the Registrable Notes or Exchange Notes, as the
case may be, in a form eligible for deposit with The Depository Trust
Company and (ii) provide a CUSIP number for the Registrable Notes or
Exchange Notes, as the case may be;
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(n) in the case of a Shelf Registration, enter into such
agreements (including underwriting agreements) as are customary in
underwritten offerings and take all such other appropriate actions as
are reasonably requested in order to expedite or facilitate the
registration or disposition of such Registrable Notes, and in such
connection, whether or not an underwriting agreement is entered into
and whether or not the registration is an underwritten registration, if
requested by (x) any Initial Purchaser, in the case where an Initial
Purchaser holds Notes acquired by it as part of the initial
distribution and (y) other Holders of Notes covered thereby, (i) make
such representations and warranties to, and covenants with, Holders of
such Registrable Notes and the underwriters (if any) with respect to
the business of the Company and its subsidiaries and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to
be incorporated by reference therein, in each case, as are customarily
made by issuers to underwriters in underwritten offerings of debt
securities with similar credit ratings to the Notes, and confirm the
same in writing if and when requested; (ii) obtain the written opinion
of counsel to the Company (which may be the Company's General Counsel)
and written updates thereof in form, scope and substance reasonably
satisfactory to the managing underwriter or underwriters (if any) and
the Majority Holders of Registrable Notes covered by such Registration
Statement, addressed to each selling Holder and the underwriters (if
any) covering the matters customarily covered in opinions requested in
underwritten offerings of debt securities with similar credit ratings
to the Notes and such other matters as may be reasonably requested by
the managing underwriter or underwriters or the Majority Holders of
Registrable Notes covered by such Registration Statement; (iii) obtain
"cold comfort" letters and updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters
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 or incorporated by reference in the Registration
Statement), addressed to each of the underwriters, such letters to be
in customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with underwritten offerings of
debt securities with similar credit ratings to the Notes and such other
matters as reasonably requested by the managing underwriter or
underwriters; and (iv) if an underwriting agreement is entered into,
the same shall contain indemnification provisions and procedures no
less favorable than those set
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forth in Section 7 hereof (or such other provisions and procedures
acceptable to the Majority Holders of Registrable Notes covered by such
Registration Statement and the managing underwriter or underwriters or
agents) with respect to all parties to be indemnified pursuant to said
Section, including, without limitation, such underwriters and selling
Holders. The above shall be done at the closing under such underwriting
agreement, or as and to the extent required thereunder;
(o) if (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, and to
the extent customary in connection with a due diligence investigation
for an offering of debt securities with a similar credit rating, make
available for inspection by representatives approved by the Majority
Holders of such Registrable Notes being sold, or such Participating
Broker-Dealers, as the case may be, any underwriter participating in
any such disposition of Registrable Notes, if any, one counsel to the
underwriters, if any (collectively, the "Inspectors"), at the offices
where normally kept, during reasonable business hours, all financial
and other records, pertinent corporate documents and instruments of the
Company and its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities. Records which the Company determines, in
good faith, to be confidential and any Records which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors
unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such Registration Statement, (ii)
the release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, (iii) disclosure of such
information is, in the opinion of counsel for any Inspector, necessary
or advisable in connection with any action, claim, suit or proceeding,
directly or indirectly, involving or potentially involving such
Inspector and arising out of, based upon, relating to, or involving
this Agreement, or any transactions contemplated hereby or arising
hereunder, or (iv) the information in such Records has been made
generally available to the public. Each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will
be required to agree that information obtained by it as a result of
such inspections shall be deemed confidential and shall not be used by
it as the basis for
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any market transactions in the securities of the Company unless and
until such information is generally available to the public. Each
selling Holder of such Registrable Notes and each such Participating
Broker-Dealer will be required to further agree that it will, upon
learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and allow the
Company to undertake appropriate action to prevent disclosure of the
Records deemed confidential at the Company's sole expense;
(p) provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and use its reasonable efforts
to cause the Indenture or the trust indenture provided for in Section
2(a) hereof, as the case may be, to be qualified under the TIA not
later than the effective date of the Exchange Offer or the first
Registration Statement relating to the Registrable Notes; and in
connection therewith, cooperate with the trustee under any such
indenture and the Holders of the Registrable Notes, to effect such
changes to such indenture as may be required for such indenture to be
so qualified in accordance with the terms of the TIA; and execute, and
use its reasonable efforts to cause such trustee to execute, all
documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable such
indenture to be so qualified in a timely manner;
(q) comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders earnings
statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Notes are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods;
(r) in the case of an Exchange Offer or a Private Exchange,
upon delivery of the Registrable Notes by Holders to the Company (or to
such other Person as directed by the Company) in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be, the
Company shall xxxx, or cause to be marked, on such Registrable Notes
that such
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Registrable Notes are being canceled in exchange for the Exchange Notes
or the Private Exchange Notes, as the case may be; in no event shall
such Registrable Notes be marked as paid or otherwise satisfied;
(s) cooperate with each seller of Registrable Notes covered by
any Registration Statement and each underwriter, if any, participating
in the disposition of such Registrable Notes and their respective
counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD");
(t) in the case of any Exchange Registration Statement, the
Company agrees to deliver to the Initial Purchasers or to another
representative of the Participating Broker-Dealers, if requested by any
such Initial Purchasers or such other representative of the
Participating Broker-Dealers, on behalf of the Participating
Broker-Dealers, upon consummation of the Exchange Offer (i) an opinion
of counsel in form and substance reasonably satisfactory to the Initial
Purchasers or such other representative of the Participating
Broker-Dealers, covering such matters customarily covered in opinions
requested in connection with Exchange Registration Statements and such
other matters as may be reasonably requested (it being agreed that the
matters to be covered by such opinion may be subject to customary
qualifications and exceptions), (ii) an officers' certificate
containing certifications substantially similar to those set forth in
Section 7(f) of the Purchase Agreement and such additional
certifications as are customarily delivered in a public offering of
debt securities and (iii) as well as upon the effectiveness of the
Exchange Registration Statement, a "cold comfort" letter, in each case,
in customary form if permitted by Statement on Auditing Standards No.
72; and
(u) use its reasonable efforts to take all other steps
necessary or advisable to effect the registration of the Registrable
Notes covered by a Registration Statement contemplated hereby.
The Company may require each seller of Registrable Notes as to
which any Registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable Notes
as the Company may, from time to time, reasonably request. The Company may
exclude from such registration the Registrable Notes of any seller who
unreasonably fails to furnish such information within a reasonable time after
receiving such request. Each seller as to which any Shelf Registration is being
effected agrees to furnish promptly to the Company all information required to
be disclosed
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in order to make the information previously furnished to the Company by such
seller not materially misleading.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, that, upon
actual receipt of any notice from the Company of the happening of any event of
the kind described in Section 5 (c)(ii)(B), 5 (c)(ii)(D), 5 (c)(ii)(E), or 5
(c)(ii)(F) hereof, such Holder will forthwith discontinue disposition of such
Registrable Notes covered by such Registration Statement or Prospectus or
Exchange Notes to be sold by such Holder or Participating Broker-Dealer, as the
case may be, until such Holder's or Participating Broker-Dealer's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof, or until it is advised in writing (the "Advice") by the Company that the
use of the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event the Company shall give any such
notice, each of the Effectiveness Period and the Applicable Period shall be
extended by the number of days during such periods from and including the date
of the giving of such notice to and including the date when each seller of
Registrable Notes covered by such Registration Statement or Exchange Notes to be
sold by such Participating Broker-Dealer, as the case may be, shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(k) hereof or (y) the Advice.
SECTION 6. Registration Expenses. (a) All fees and expenses
incident to the performance of or compliance with this Agreement by the Company
shall be borne by the Company whether or not the Exchange Offer or a Shelf
Registration is filed or becomes effective, including, without limitation (i)
all registration and filing fees and expenses (including (A) fees with respect
to filings required to be made with the NASD in connection with an underwritten
offering (and, if applicable, the fees and expense of any "qualified independent
underwriter" and its counsel that may be required by the rules and regulations
of the NASD) and (B) fees and expenses of compliance with state securities or
Blue Sky laws (including reasonable fees and disbursements of counsel in
connection with Blue Sky qualifications of the Registrable Notes or Exchange
Notes and determination of the eligibility of the Registrable Notes or Exchange
Notes for investment under the laws of such jurisdictions (x) where the holders
of Registrable Notes are located, in the case of the Exchange Notes, or (y) as
provided in Section 5(h) hereof, in the case of Registrable Notes or Exchange
Notes to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing expenses, including expenses of printing certificates
for Registrable Notes or Exchange Notes in a form eligible for deposit with The
Depository Trust Company
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and of printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, by the Majority Holders of the
Registrable Notes included in any Registration Statement or sold by any
Participating Broker-Dealer, as the case may be, (iii) messenger, telephone and
delivery expenses, (iv) fees and disbursements of counsel for the Company and,
subject to the provisions of Section 6(b) hereof, reasonable fees and
disbursements of counsel for the sellers of Registrable Notes, (v) fees and
disbursements of all independent certified public accountants of the Company
(including the expenses of any special audit and "cold comfort" letters required
by or incident to such performance), (vi) rating agency fees, if any, and any
fees associated with making the Registrable Notes or Exchange Notes eligible for
trading through The Depository Trust Company, (vii) Securities Act liability
insurance, if the Company desires such insurance, (viii) fees and expenses of
all other Persons retained by the Company, (ix) internal expenses of the Company
(including all salaries and expenses of officers and employees of the Company
performing legal or accounting duties), (x) the expense of any annual audit,
(xi) the fees and expenses of the Trustee, and any exchange agent or custodian,
(xii) the fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange or an automated quotation
system, if applicable, and (xiii) the expenses relating to printing, word
processing and distributing all Registration Statements, any underwriting
agreement, indentures and any other documents necessary in order to comply with
this Agreement.
(b) The Company shall (i) reimburse the Holders of the
Registrable Notes being registered pursuant to this Agreement for the reasonable
fees and disbursements, in an aggregate amount not to exceed $25,000, of not
more than one counsel (in addition to appropriate local counsel) chosen by the
Majority Holders of the Registrable Notes to be included in such Registration
Statement and (ii) reimburse out-of-pocket expenses (other than legal expenses)
of Holders of Registrable Notes incurred in connection with the registration and
sale of the Registrable Notes pursuant to a Shelf Registration or in connection
with the exchange of Registrable Notes pursuant to the Exchange Offer.
SECTION 7. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Holder of Registrable Notes offered pursuant to a Shelf
Registration Statement and each Participating Broker-Dealer selling Exchange
Notes during the Applicable Period, the affiliates, directors, officers, agents,
representatives and employees of each such Person or its affiliates, and each
other Person, if any, who controls any such Person or its affiliates within the
meaning of either Section 15 of the Securities Act or Section 20(a) of the
Exchange Act (each,
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a "Participant"), from and against any and all losses, liabilities, claims,
damages and expenses whatsoever as incurred (including reasonable attorneys'
fees and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained or incorporated by reference in any Registration
Statement pursuant to which the offering of such Registrable Notes or Exchange
Notes, as the case may be, is registered, or in any supplement thereto or
amendment thereof, or any related Prospectus, or any supplement thereto or
amendment thereof, or any related preliminary Prospectus, 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; provided, however, that the Company will not be liable to any
Participant in any such case to the extent, but only to the extent, that any
such loss, liability, claim, damage or expense 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 relating to such Participant furnished to the Company in writing by
or on behalf of such Participant expressly for use therein; provided further,
however, that such indemnity agreement with respect to any preliminary
Prospectus shall not inure to the benefit of any Participant from whom the
Person asserting any loss, liability, claim, damage or expense purchased
Registrable Notes or Exchange Notes, as the case may be, if a copy of the
Prospectus filed as part of an effective Registration Statement (as then amended
or supplemented and furnished by the Company to such Participant) was not sent
or given by or on behalf of such Participant to such Person, if such is required
by law, at or prior to the sale of such Registrable Notes or Exchange Notes, as
the case may be, and if such Prospectus (as so amended or supplemented) would
have cured the defect giving rise to such loss, liability, claim, damage or
expense. This indemnity agreement will be in addition to any liability which the
Company may otherwise have, including under this Agreement.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors and officers and each
Person who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act to the same extent as the
foregoing indemnity from the Company to each Participant, but only with
reference to information relating to such Participant furnished
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to the Company in writing by or on behalf of such Participant expressly for use
in any Registration Statement or Prospectus, any amendment or supplement
thereto, or any preliminary prospectus or (ii) with respect to any untrue
statement or representation made by such Participant in writing to the Company
pursuant to Section 2(a) hereof.
(c) Promptly after receipt by any Person in respect of which
indemnity may be sought under subsection (a) or (b) above of notice of the
commencement of any action, such Person (the "Indemnified Person") shall, if a
claim in respect thereof is to be made against the Person whom such indemnity
may be sought (the "Indemnifying Person") under such subsection, notify each
Indemnifying Person against whom indemnification is to be sought in writing of
the commencement thereof, provided, however, that failure to notify the
Indemnifying Person shall not relieve it from any liability which it may have
under paragraph (a) or (b) above except to the extent it has been materially
prejudiced by such failure; and provided further that the failure to notify the
Indemnifying Person shall not relieve it from any liability which it may have to
an Indemnified Person otherwise than under this Section 7. In case any such
action is brought against any Indemnified Person, and it notifies an
Indemnifying Person of the commencement thereof, the Indemnifying Person will be
entitled to participate therein, and to the extent it may elect by written
notice delivered to the Indemnified Person promptly after receiving the
aforesaid notice from such Indemnified Person, to assume the defense thereof
with counsel satisfactory to such Indemnified Person. Notwithstanding the
foregoing, the Indemnified Person or parties shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person or parties unless (i) the
employment of such counsel shall have been authorized in writing by the
Indemnifying Persons in connection with the defense of such action, (ii) the
Indemnifying Persons shall not have employed counsel to take charge of the
defense of such action within a reasonable time after receipt of notice of
commencement of the action, or (iii) such Indemnified Person or Persons shall
have been advised by counsel that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
Indemnifying Persons (in which case the Indemnifying Persons shall have the
right to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of the Indemnified Person or
Persons), in which event the reasonable fees and expenses of one separate firm
of attorneys for all such Indemnified Persons (together with one firm of local
counsel in each appropriate jurisdiction) shall be borne by the Indemnifying
Persons. Anything in this subsection to the contrary notwithstanding, an
Indemnifying Person shall not be liable for any settlement of any claim or
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action effected without its written consent; provided, however, that such
consent was not unreasonably withheld. No Indemnifying Person shall, without the
prior written consent of the Indemnified Persons, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution is being sought under this Section 7 (whether or not the
Indemnified Persons are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional written release
in form and substance satisfactory to the Indemnified Persons from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any Indemnified Person unless such statement is
otherwise consented to in writing by the Indemnified Party.
(d) In order to provide for contribution in circumstances in
which the indemnification provided for in the preceding paragraphs of this
Section 7 is for any reason held to be unavailable from any Indemnifying Person
or is insufficient to hold harmless an Indemnified Person thereunder, each
Indemnifying Person shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Company any
contribution received by the Company from persons, other than the Indemnified
Persons, who may also be liable for contribution, including persons who control
the Company within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act, officers and directors of the Company) as incurred to
which the Indemnified Party may be subject, in such proportions as is
appropriate to reflect the relative benefits received by the Indemnifying Person
or Persons, on the one hand, and the Indemnified Person or Persons on the other
from the offering of the Notes or, if such allocation is not permitted by
applicable law or indemnification is not available as a result of the
Indemnifying Person not having received notice as provided in the preceding
paragraphs of this Section 7, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Indemnifying Person or Persons, on the one hand, and the Indemnified Person
or Persons on the other in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative fault of the parties
shall be determined by reference to, among other things, whether the untrue or
alleged
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untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Participant and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The parties
agree that it would not be just and equitable if contribution pursuant to this
paragraph (d) were determined by pro rata allocation (even if the Participants
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), (i) in no case
shall a Participant be required to contribute any amount in excess of the amount
by which proceeds received by such Participant from sales of Registrable Notes
or Exchange Notes, as the case may be, exceeds the amount of damages that such
Participant has otherwise been required to pay or has paid by reason of such
untrue statement or alleged untrue statement or omission or alleged omission,
and (ii) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this paragraph (d), each Person, if any, who controls a Participant within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act
shall have the same rights to contribution as such Participant, and each Person,
if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, each director and officer
of the Company shall have the same rights to contribution as the Company,
subject in each case to clauses (i) and (ii) of this Paragraph (d). Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties, notify each party
or parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
paragraph (d) or otherwise, except to the extent that such omission results in
material prejudice; provided, however, that the omission to so notify shall not
relieve a party from any liability which it may have to another party otherwise
than under this Section 7. No party shall be liable for contribution with
respect to any action or claim settled without its written consent; provided,
however, that such consent was not unreasonably withheld.
SECTION 8. Rule 144 and Rule 144A. The Company covenants that it will
file the reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder in a
timely manner in accordance with the requirements of the Securities Act and the
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Exchange Act and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Registrable Notes, make
publicly available (i) all quarterly and annual financial information that would
be required to be contained in a filing with the Commission on Forms 10-Q and
10-K if the Company were required to file such forms, including for each a
"Management's Discussion and Analysis of Results of Operations and Financial
Condition" and, with respect to the annual information only, a report thereon by
the Company's independent certified public accountants and (ii) all reports that
would be required to be filed with the Commission on Form 8-K if the Company
were required to file such reports. The Company further covenants for so long as
any Registrable Notes remain outstanding, to make available to any Holder or
beneficial owner of Registrable Notes in connection with any sale thereof and
any prospective purchaser of such Registrable Notes from such Holder or
beneficial owner the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Registrable Notes pursuant to
Rule 144A.
SECTION 9. Underwritten Registration. If any of the Registrable Notes
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Majority Holders of such Registrable
Notes included in such offering and reasonably acceptable to the Company.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
SECTION 10. Miscellaneous. (a) No Inconsistent Agreements. The Company
has not entered, as of the date hereof, and the Company will not, after the date
of this Agreement, enter into any agreement with respect to any of its
securities that is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the provisions
hereof. The Company has not entered and the Company will not enter into any
agreement with respect to any of its securities which will grant to any Person
piggy-back registration rights with respect to a Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Company will
not, directly or indirectly, take any action with respect to the Registrable
Notes as a class that would adversely
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affect the ability of the Holders of Registrable Notes to include such
Registrable Notes in a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than with the
prior written consent of the Holders of not less than a majority in aggregate
principal amount of the then outstanding Registrable Notes. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of Registrable
Notes whose securities are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect, impair, limit or compromise the
rights of other Holders of Registrable Notes may be given by Holders of at least
a majority in aggregate principal amount of the Registrable Notes being sold by
such Holders pursuant to such Registration Statement; provided, however, that
the provisions of this sentence may not be amended, modified or supplemented
except in accordance with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications (including
any notices or other communications to the Trustee) provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, next-day air courier or facsimile:
(i) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set forth on the
records of the registrar under the Indenture, with a copy in like
manner to the Initial Purchasers as follows:
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx, 0xx Xxxxx
with a copy to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esquire
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(ii) if to the Initial Purchasers, at the address specified
in Section 10(d)(i);
(iii) if to the Company, as follows:
P. H. Xxxxxxxxxx Company
000 Xxxxx Xxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxx
Secretary and Treasurer
with copies to:
Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxx, Xx., Esquire
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; one business
day after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties hereto; provided, however, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder unless and
to the extent such successor or assign holds Registrable Notes.
(f) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the
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State of New York, as applied to contracts made and performed wholly within the
State of New York, without regard to principles of conflicts of law.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Notes Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company or its affiliates (as
such term is defined in Rule 405 under the Securities Act) shall not be counted
in determining whether such consent or approval was given by the Holders of such
required percentage.
(k) Third-Party Beneficiaries. Holders of Registrable Notes
and Participating Broker-Dealers are intended third-party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
P. H. GLATFELTER COMPANY
By: /s/ X. X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Sr. Vice President & CFO
BEAR, XXXXXXX & CO. INC.
BT SECURITIES CORPORATION
By: BEAR, XXXXXXX & CO. INC.
By: /s/ X.X. Xxxxx
--------------------------------------
Name: Xxx X. Xxxxx
Title: Senior Managing Director
