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EXHIBIT 4.4
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of June 5,1998, among
X.X. Xxxxxxxxx Inc., a Delaware corporation (the "Company"), The Dun &
Bradstreet Corporation, a Delaware corporation and parent to the Company
("Parent Company"), Xxxxxxx, Sachs & Co., and Chase Securities Inc., as initial
purchasers (collectively, the "Purchasers") of the 9-1/8% Senior Subordinated
Notes due June 1, 2008 (the "Notes"), of the Company, which are guaranteed on a
senior subordinated basis by the Parent Company and will be guaranteed by any
future Restricted Subsidiary of the Company.
The Company proposes to issue and sell to the Purchasers upon the terms
set forth in the Purchase Agreement (as defined herein) the Notes. As an
inducement to the Purchasers to enter into the Purchase Agreement and in
satisfaction of a condition to the obligations of the Purchasers thereunder, the
Company agrees with the Purchasers for the benefit of holders (as defined
herein) from time to time of the Registrable Notes (as defined herein) as
follows:
1. Certain Definitions.
For purposes of this Exchange and Registration Rights Agreement, the
following terms shall have the following respective meanings:
"Base Interest" shall mean the interest that would otherwise accrue on the
Notes under the terms thereof and the Indenture, without giving effect to the
provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer registered with
the Commission under the Exchange Act.
"Closing Date" shall mean June 5, 1998.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"Effective Date," in the case of (i) an Exchange Registration, shall mean
the time and date as of which the Commission declares the Exchange Offer
Registration Statement effective or as of which the Exchange Offer Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall mean
the time and date as of which the Commission declares the Shelf Registration
Statement effective or as of which the Shelf Registration Statement otherwise
becomes effective.
"Electing Holder" shall mean any holder of Registrable Notes that has
returned a
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completed and signed Notice and Questionnaire to the Company in accordance with
Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
"Exchange Notes" shall have the meaning assigned thereto in Section 2(a)
hereof
"Exchange Offer" shall have the meaning assigned thereto in Section 2(a)
hereof
"Exchange Offer Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in Section
3(c) hereof.
"Guarantors" shall have the meaning assigned thereto in the Indenture.
The term "holder" shall mean each of the Purchasers and other persons who
acquire Registrable Notes from time to time (including any successors or
assigns), in each case for so long as such person owns any Registrable Notes.
"Indenture" shall mean the Indenture, dated as of June 5, 1998, between
the Company and The Bank of New York, as Trustee, as the same shall be amended
from time to time.
"Notes" shall mean, collectively, the 9-1/8% Senior Subordinated Notes due
June 1, 2008 of the Company to be issued and sold to the Purchasers, and
securities issued in exchange therefor or in lieu thereof pursuant to the
Indenture. Each Note is entitled to the benefit of the guarantees provided for
in the Indenture (the "Guarantees") and, unless the context otherwise requires,
any reference herein to a "Note," an "Exchange Note" or a "Registrable Note"
shall include a reference to the related Guarantees.
"Notice and Questionnaire" shall mean a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
The term "person" shall mean a corporation, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of June
2, 1998, between the Purchasers and the Company relating to the Notes.
"Registrable Notes" shall mean the Notes; provided, however, that a Note
shall cease to be a Registrable Note when (i) in the circumstances contemplated
by Section 2(a) hereof, the
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Note has been exchanged for an Exchange Note in an Exchange Offer as
contemplated in Section 2(a) (provided that any Exchange Note received by a
broker-dealer in an Exchange Offer in, exchange for a Registrable Note that was
not acquired by the broker-dealer directly from the Company will also be a
Registrable Note through and including the earlier of the 180th day after the
Exchange Offer is completed or such time as such broker-dealer no longer owns
such Note); (ii) in the circumstances contemplated by Section 2(b) hereof, a
Shelf Registration Statement registering such Note under the Securities Act has
been declared or becomes effective and such Note has been sold or otherwise
transferred by the holder thereof pursuant to and in a manner contemplated by
such effective Shelf Registration Statement; (iii) such Note is sold pursuant to
Rule 144 under circumstances in which any legend borne by such Note relating to
restrictions on transferability thereof, under the Securities Act or otherwise,
is removed by the Company or pursuant to the Indenture; (iv) such Note is
eligible to be sold pursuant to paragraph (k) of Rule 144; or (v) such Note
shall cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto in Section
2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in Section
4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section 2(a)
hereof
"Restricted Holder" shall mean (i) a holder that is an affiliate of the
Company within the meaning of Rule 405, (ii) a holder who acquires Exchange
Notes outside the ordinary course of such holder's business, (iii) a holder who
has arrangements or understandings with any person to participate in the
Exchange Offer for the purpose of distributing Exchange Notes and (iv) a holder
that is a broker-dealer, but only with respect to Exchange Notes received by
such brokerdealer pursuant to an Exchange Offer in exchange for Registrable
Notes acquired by the brokerdealer directly from the Company.
"Restricted Subsidiary" shall have the meaning assigned thereto in the
Indenture.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such rule
promulgated under the Securities Act (or any successor provision), as the same
shall be amended from time to time.
"Securities Act" shall mean the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in Section
2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto in
Section 2(b) hereof.
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"Special Interest" shall have the meaning assigned thereto in Section 2(c)
hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a "Section"
or "clause" refers to a Section or clause, as the case may be, of this Exchange
and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to use
its reasonable best efforts to file with the Commission under the
Securities Act, within 60 days after the Closing Date, a registration
statement relating to an offer to exchange (such registration statement,
the "Exchange Offer Registration Statement", and such offer, the "Exchange
Offer") any and all of the Notes for a like aggregate principal amount of
debt securities issued by the Company and guaranteed by the Guarantors,
which debt securities and guarantees are substantially identical to the
Notes and the related Guarantees, respectively (and are entitled to the
benefits of a trust indenture which is substantially identical to the
Indenture or is the Indenture and which has been qualified under the Trust
Indenture Act), except that they have been registered pursuant to an
effective registration statement under the Securities Act and do not
contain provisions for the Special Interest payments contemplated in
Section 2(c) below (such new debt securities hereinafter called "Exchange
Notes"). The Company agrees to use its reasonable best efforts to cause
the Exchange Offer Registration Statement to become effective under the
Securities Act as soon as practicable, but no later than 120 days after
the Closing Date. The Exchange Offer will be registered under the
Securities Act on the appropriate form and will comply with all applicable
tender offer rules and regulations under the Exchange Act. The Company
further agrees to use its reasonable best efforts to commence and complete
the Exchange Offer promptly after such registration statement has become
effective, hold the Exchange Offer open for at least 30 days and issue
Exchange Notes for all Registrable Notes that have been properly tendered
and not withdrawn on or prior to the expiration of the Exchange Offer. The
Exchange Offer will be deemed to have been "completed" only if the debt
securities and related guarantees received by holders other than
Restricted Holders in the Exchange Offer for Registrable Notes are, upon
receipt, transferable by each such holder without need for further
compliance with Section 5 of the Securities Act and the Exchange Act
(except for the requirement to deliver a prospectus included in the
Exchange Offer Registration Statement applicable to resales by
brokerdealers of Exchange Notes received by such broker-dealer
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pursuant to an Exchange Offer in exchange for Registrable Notes other than
those acquired by the broker-dealer directly from the Company), and
without material restrictions under the blue sky or securities laws of a
substantial majority of the States of the United States of America. The
Exchange Offer shall be deemed to have been completed upon the earlier to
occur of (i) the Company having exchanged the Exchange Notes for all
outstanding Registrable Notes pursuant to the Exchange Offer and (ii) the
Company having exchanged, pursuant to the Exchange Offer, Exchange Notes
for all Registrable Notes that have been properly tendered and not
withdrawn before the expiration of the Exchange Offer, which shall be on a
date that is at least 30 days following the commencement of the Exchange
Offer. The Company agrees (x) to include in the Exchange Offer
Registration Statement a prospectus for use in connection with any resales
of Exchange Notes by a broker-dealer, other than resales of Exchange Notes
received by a broker-dealer pursuant to an Exchange Offer in exchange for
Registrable Notes acquired by the broker-dealer directly from the Company,
and (y) to use its reasonable best efforts to keep such Exchange Offer
Registration Statement effective for a period (the "Resale Period")
beginning when Exchange Notes are first issued in the Exchange Offer and
ending upon the earlier of the expiration of the 180th day after the
Exchange Offer has been consummated or such time as such broker-dealers no
longer own any Registrable Notes. With respect to such Exchange Offer
Registration Statement, each broker-dealer that holds Exchange Notes
received in an Exchange Offer in exchange for Registrable Notes not
acquired by it directly from the Company shall have the benefit of the
rights of indemnification and contribution set forth in Sections 6(a),
(c), (d) and (e) hereof.
(b) If (i) on or prior to the date of consummation of the Exchange Offer,
existing Commission interpretations are changed such that the debt
securities or any related guarantees received by holders other than
Restricted Holders in the Exchange Offer for Registrable Notes are not or
would not be, upon receipt, freely transferable by each such holder
without need for further compliance with Section 5 of the Securities Act
(except for the requirement to deliver a prospectus included in the
Exchange Offer Registration Statement applicable to resales by
broker-dealers of Exchange Notes received by such broker-dealer pursuant
to an Exchange Offer in exchange for Registrable Notes other than those
acquired by the broker-dealer directly from the Company), (ii) the
Exchange Offer has not been consummated within 210 days following the
Closing Date or (iii) the Initial Purchasers so request within 60 days
after the consummation of the Exchange Offer, in lieu of (or, in the case
of clause (iii), in addition to) conducting the Exchange Offer
contemplated by Section 2(a) the Company shall use its reasonable best
efforts to file under the Securities Act as soon as practicable, but no
later than 60 days, or 270 days with respect to the event referenced in
clause (ii) above, after the Closing Date, a "shelf" registration
statement providing for the registration of, and the sale on a continuous
or delayed basis by the holders of, all of the Registrable Notes, or in
the case of clause (iii), of Notes held by a holder of Notes for resale by
such holder, pursuant to Rule 415 or any
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similar rule that may be adopted by the Commission (such filing, the
"Shelf Registration" and such registration statement, the "Shelf
Registration Statement"). The Company agrees (i) to use its reasonable
best efforts to cause such Shelf Registration Statement be declared
effective within 180 days, or 390 days with respect to the event
referenced in clause (ii) above, of the Closing Date and to remain
effective for two years following the effective date of the Shelf
Registration Statement or such shorter period that will terminate when all
the securities covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement, provided, however, that no
holder shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement or to use the prospectus forming a part
thereof for resales of Registrable Notes unless such holder is an Electing
Holder, and (ii) after the Effective Date of the Shelf Registration
Statement, promptly upon the request of any holder of Registrable Notes
that is not then an Electing Holder, to take any action reasonably
necessary to enable such holder to use the prospectus forming a part
thereof for resales of Registrable Notes, including, without limitation,
any action necessary to identify such holder as a selling securityholder
in the Shelf Registration Statement, provided, however, that nothing in
this clause (ii) shall relieve any such holder of the obligation to return
a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(iii) hereof. Notwithstanding clause (i) of
the previous sentence, the Company shall not be obligated to keep the
Shelf Registration Statement effective if (A) the Company determines, in
its reasonable judgment, upon advice of counsel, that the continued
effectiveness and usability of the Shelf Registration Statement would (x)
require the disclosure of confidential information, which the Company has
a bona fide business reason for preserving as confidential, or (y)
interfere with any financing, acquisition, corporate reorganization or
other material transaction involving the Company or any affiliate, and
provided further, that the failure to keep the Shelf Registration
Statement effective and usable for offers and sales of Registrable Notes
for such reasons shall last no longer than 45 days in any 12-month period.
Any such period during which the Company is excused from keeping the Shelf
Registration Statement effective and usable for offers and sales of
Registrable Notes is referred to herein as a "Suspension Period"; a
Suspension Period shall commence and include the date that the Company
gives notice to the Electing Holders that the Shelf Registration Statement
is no longer effective or the prospectus included therein is no longer
usable for offers and sales of Registrable Notes as a result of the
application of the proviso of the foregoing sentence and shall end on the
earlier to occur of (1) the date on which each seller of Registrable Notes
covered by the Shelf Registration Statement either receives copies of the
supplemented or amended prospectus or is advised in writing by the Company
that use of the prospectus may be resumed or (2) the expiration of 45 days
in any 12-month period during which one or more Suspension Periods has
been in effect.
(c) In the event that (i) the Company has not filed the Exchange Offer
Registration Statement (or, if applicable, the Shelf Registration
Statement) within 60 days
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following the Closing Date, or (ii) such Exchange Offer Registration
Statement or Shelf Registration Statement has not become effective or been
declared effective by the Commission within 120 days following the Closing
Date, or (iii) the Exchange Offer has not been consummated within 60
business days after the Effective Date or (iv) any Exchange Offer
Registration Statement or Shelf Registration Statement required by Section
2(a) or 2(b) hereof is filed and declared effective but shall thereafter
either be withdrawn by the Company or shall become subject to an effective
stop order issued pursuant to Section 8(d) of the Securities Act
suspending the effectiveness of such registration statement (except as
specifically permitted herein) without being succeeded immediately by an
additional registration statement filed and declared effective (each such
event referred to in clauses (i) through (iv), a "Registration Default"
and each period during which a Registration Default has occurred and is
continuing, a "Registration Default Period"), then, the per annum interest
rate on the applicable Notes will increase (such increase referred to
herein as the "Special Interest"), for the period from the occurrence of
the Registration Default until such time as no Registration Default is in
effect (at which time the interest rate will be reduced to its initial
rate) by 0.25% during the first 90-day period following the occurrence of
such Registration Default, and by an additional 0.25% during each
subsequent 90-day period thereafter (up to a maximum of 1.0%).
(d) The Company shall take, and shall cause each Guarantor to take, all
action necessary or advisable to be taken by it to ensure that the
transactions contemplated herein are effected as so contemplated,
including all action necessary or desirable to register the Guarantees
under the registration statement contemplated in Section 2(a) or 2(b)
hereof, as applicable.
(e) Any reference herein to a registration statement as of any time shall
be deemed to include any document incorporated therein by reference as of
such time and any reference herein to any post-effective amendment to a
registration statement as of any time shall be deemed to include any
document incorporated therein by reference as of such time.
3. Registration Procedures.
If the Company files a registration statement pursuant to Section 2(a) or
Section 2(b), the following provisions shall apply:
(a) At or before the Effective Date of the Exchange Offer or the Shelf
Registration, as the case may be, the Company shall qualify the Indenture
under the Trust Indenture Act of 1939.
(b) In the event that such qualification would require the appointment of
a new
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trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall, as soon as
practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but no later than 60 days after the Closing Date, an
Exchange Offer Registration Statement on any form which may be
utilized by the Company and which shall permit the Exchange Offer
and resales of Exchange Notes by broker-dealers during the Resale
Period to be effected as contemplated by Section 2(a), and use its
best efforts to cause such Exchange Offer Registration Statement to
become effective as soon as practicable thereafter, but no later
than 120 days after the Closing Date;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Exchange Offer
Registration Statement and the prospectus included therein as may be
necessary to use its reasonable best efforts to effect and maintain
the effectiveness of such Exchange Offer Registration Statement for
the periods and purposes contemplated in Section 2(a) hereof and as
may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
Exchange Offer Registration Statement, and promptly provide each
broker-dealer holding Exchange Notes with such number of copies of
the prospectus included therein (as then amended or supplemented),
in conformity in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, as such broker-dealer
reasonably may request prior to the expiration of the Resale Period,
for use in connection with resales of Exchange Notes;
(iii) promptly notify Xxxxxxx, Xxxxx & Co., on behalf of each
broker-dealer that has requested or received copies of the
prospectus included in such registration statement for use in
consummating resales during the Resale Period (and which has
provided in writing to the Company a telephone or facsimile number
and address for notices), and confirm such advice in writing, (A)
when such Exchange Offer Registration Statement or the prospectus
included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such
Exchange Offer Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any comments
by the Commission or any request by the Commission for amendments or
supplements to such Exchange Offer Registration Statement or
prospectus or for additional information, (C) of the issuance by the
Commission of any stop
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order suspending the effectiveness of such Exchange Offer
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the representations
and warranties of the Company contemplated by Section 5 cease to be
true and correct in all material respects, (E) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Exchange Notes for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose, or
(F) at any time during the Resale Period when a prospectus is
required to be delivered under the Securities Act, that such
Exchange Offer Registration Statement, prospectus, prospectus
amendment or supplement or post-effective amendment does not conform
in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(iv) in the event that the Company would be required, pursuant
to Section 3(e)(iii)(F) above, to notify any broker-dealers holding
Exchange Notes, prepare and furnish as promptly as practicable to
each such holder a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to
purchasers of such Exchange Notes during the Resale Period, such
prospectus shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder and shall 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 not misleading in light of the circumstances then
existing;
(v) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of such Exchange Offer
Registration Statement or any post-effective amendment thereto as
promptly as practicable;
(vi) use its reasonable best efforts to (A) register or
qualify the Exchange Notes under the securities laws or blue sky
laws of such jurisdictions as are contemplated by Section 2(a) no
later than the commencement of the Exchange Offer, (B) keep such
registrations or qualifications in effect and comply with such laws
so as to permit the continuance of offers, sales and dealings
therein in such jurisdictions until the expiration of the Resale
Period and (C) take any and all other actions as may be reasonably
necessary or advisable to enable each broker-dealer holding Exchange
Notes to consummate the disposition thereof in such jurisdictions;
provided, however, that neither the Company nor any Guarantor shall
be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the
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requirements of this Section 3(c)(vi), (2) consent to general
service of process in any such jurisdiction or (3) make any changes
to its certificate of incorporation or by-laws or any agreement
between it and its stockholders;
(vii) use its reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal,
state or local, which may be required to effect the Exchange
Registration, the Exchange Offer and the offering and sale of
Exchange Notes by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Notes, not
later than the applicable Effective Date;
(ix) use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission; and make
generally available to its securityholders as soon as practicable
but no later than eighteen months after the effective date of such
Exchange Offer Registration Statement, an earnings statement of the
Company and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158
thereunder).
(d) In connection with the Company's obligations with respect to the Shelf
Registration, if applicable, the Company shall, as soon as practicable (or
as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but in any case within the time period specified in
Section 2(b), a Shelf Registration Statement on any form which may
be utilized by the Company and which shall register all of the
Registrable Notes for resale by the holders thereof in accordance
with such method or methods of disposition as may be specified by
such of the holders as, from time to time, may be Electing Holders
and use its reasonable best efforts to cause such Shelf Registration
Statement to become effective as soon as practicable but in any case
within the time period specified in Section 2(b);
(ii) not less than 30 calendar days prior to the Effective
Date of the Shelf Registration Statement, mail the Notice and
Questionnaire to the holders of Registrable Notes; no holder shall
be entitled to be named as a selling securityholder in the Shelf
Registration Statement as of the Effective Date, and no holder shall
be entitled to use the prospectus forming a part thereof for resales
of Registrable Notes at any time, unless such holder has returned a
completed and signed Notice and Questionnaire to the Company by the
deadline for response set forth therein; provided, however, holders
of Registrable Notes shall have at least 21 calendar days from the
date on which the Notice and Questionnaire is first mailed to such
holders to return a completed and signed Notice and Questionnaire
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to the Company;
(iii) after the Effective Date of the Shelf Registration
Statement, upon the request of any holder of Registrable Notes that
is not then an Electing Holder, promptly send a Notice and
Questionnaire to such holder; provided that the Company shall not be
required to take any action to name such holder as a selling
securityholder in the Shelf Registration Statement or to enable such
holder to use the prospectus forming a part thereof for resales of
Registrable Notes until such holder has returned a completed and
signed Notice and Questionnaire to the Company;
(iv) as soon as reasonably practicable prepare and file with
the Commission such amendments and supplements to such Shelf
Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such Shelf
Registration Statement for the period specified in Section 2(b)
hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the
form of such Shelf Registration Statement, and furnish to the
Electing Holders copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with the
Commission;
(v) comply with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Notes covered
by such Shelf Registration Statement in accordance with the intended
methods of disposition by the Electing Holders provided for in such
Shelf Registration Statement;
(vi) provide (A) the Electing Holders, (B) the underwriters
(which term, for purposes of this Exchange and Registration Rights
Agreement, shall include a person deemed to be an underwriter within
the meaning of Section 2(11) of the Securities Act), if any,
thereof, (C) any sales or placement agent therefor, (D) counsel for
any such underwriter or agent and (E) not more than one counsel for
all the Electing Holders the opportunity to participate in the
preparation of such Shelf Registration Statement each prospectus
included therein or filed with the Commission and each amendment or
supplement thereto;
(vii) for a reasonable period prior to the filing of such
Shelf Registration Statement, and throughout the period specified in
Section 2(b), make available at reasonable times at the Company's
principal place of business or such other reasonable place for
inspection by the persons referred to in Section 3(d)(vi) who shall
certify to the Company that they have a current intention to sell
the Registrable Notes pursuant to the Shelf Registration such
financial and other information and books and records of the
Company, and cause the officers,
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employees, counsel and independent certified public accountants of
the Company to respond to such inquiries, as shall be reasonably
necessary, in the reasonable judgment of the respective counsel
referred to in such Section, to conduct a reasonable investigation
within the meaning of Section I I of the Securities Act; provided,
however, that each such party shall be required to maintain in
confidence and not to disclose to any other person any information
or records reasonably designated by the Company as being
confidential, until such time as (A) such information becomes a
matter of public record (whether by virtue of its inclusion in such
registration statement or otherwise), or (B) such person shall be
required so to disclose such information pursuant to a subpoena or
order of any court or other governmental agency or body having
jurisdiction over the matter (subject to the requirements of such
order, and only after such person shall have given the Company
prompt prior written notice of such requirement), or (C) subject to
the provisions of Section 2(b) relating to Suspension Periods, such
information is required to be set forth in such Shelf Registration
Statement or the prospectus included therein or in an amendment to
such Shelf Registration Statement or an amendment or supplement to
such prospectus in order that such Shelf Registration Statement,
prospectus, amendment or supplement, as the case may be, complies
with applicable requirements of the federal securities laws and the
rules and regulations of the Commission and does not contain an
untrue statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(viii) promptly notify each of the Electing Holders, any sales
or placement agent therefor and any underwriter thereof (which
notification may be made through any managing underwriter that is a
representative of such underwriter for such purpose) and confirm
such advice in writing, (A) when such Shelf Registration Statement
or the prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with
respect to such Shelf Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any comments
by the Commission with respect thereto or any request by the
Commission for amendments or supplements to such Shelf Registration
Statement or prospectus or for additional information, (C) of the
issuance by the Commission of any stop order suspending the
effectiveness of such Shelf Registration Statement or the initiation
or threatening of any proceedings for that purpose, (D) if at any
time the representations and warranties of the Company contemplated
by Section 3(d)(xvii) or Section 5 cease to be true and correct in
all material respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Registrable Notes for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose, or (F) if at any
time when a
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prospectus is required to be delivered under the Securities Act,
such Shelf Registration Statement, prospectus, prospectus amendment
or supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder or contains an untrue statement of a material
fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading
in light of the circumstances then existing;
(ix) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of such registration
statement or any post-effective amendment thereto as promptly as
practicable;
(x) if requested by any managing underwriter or underwriters,
any placement or sales agent or Electing Holder, promptly
incorporate in a prospectus supplement or post-effective amendment
such information as is required by the applicable rules and
regulations of the Commission and as such managing underwriter or
underwriters, such agent or such Electing Holder specifies should be
included therein relating to the terms of the sale of such
Registrable Notes, including information with respect to the
principal amount of Registrable Notes being sold by such Electing
Holder or agent or to any underwriters, the name and description of
such Electing Holder, agent or underwriter, the offering price of
such Registrable Notes and any discount, commission or other
compensation payable in respect thereof, the purchase price being
paid therefor by such underwriters and with respect to any other
terms of the offering of the Registrable Notes to be sold by such
Electing Holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or post-effective
amendment as soon as practicable after notification of the matters
to be incorporated in such prospectus supplement or post-effective
amendment;
(xi) furnish to each Electing Holder, each placement or sales
agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 3(d)(vi) an executed copy
(or, in the case of an Electing Holder, a conformed copy) of such
Shelf Registration Statement, each such amendment and supplement
thereto (in each case including all exhibits thereto (in the case of
an Electing Holder, upon request) and documents incorporated by
reference therein) and such number of copies of such Shelf
Registration Statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested
by such Electing Holder, agent or underwriter, as the case may be)
and of the prospectus included in such Shelf Registration Statement
(including each preliminary prospectus and any summary prospectus),
and such other documents, as such Electing Holder, agent, if any,
and underwriter, if any,
14
may reasonably request in order to facilitate the offering and
disposition of the Registrable Notes owned by such Electing Holder,
offered or sold by such agent or underwritten by such underwriter
and to permit such Electing Holder, agent and underwriter to satisfy
the prospectus delivery requirements of the Securities Act; and the
Company hereby consents to the use of such prospectus (including
such preliminary and summary prospectus) and any amendment or
supplement thereto by each such Electing Holder and by any such
agent and underwriter, in each case in the form most recently
provided to such person by the Company, in connection with the
offering and sale of the Registrable Notes covered by the prospectus
(including such preliminary and summary prospectus) or any
supplement or amendment thereto;
(xii) use its reasonable best efforts to (A) register or
qualify the Registrable Notes to be included in such Shelf
Registration Statement under such securities laws or blue sky laws
of such jurisdictions as any Electing Holder and each placement or
sales agent, if any, therefor and underwriter, if any, thereof shall
reasonably request, (B) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions during the
period the Shelf Registration is required to remain effective under
Section 2(b) above and for so long as may be necessary to enable any
Electing Holder, agent or underwriter to complete its distribution
of Notes pursuant to such Shelf Registration Statement and (C) take
any and all other actions as may be reasonably necessary or
advisable to enable each such Electing Holder, agent, if any, and
underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Notes; provided, however, that
neither the Company nor any Guarantor shall be required for any such
purpose to (1) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(d)(xii), (2) consent to general
service of process in any such jurisdiction or (3) make any changes
to its certificate of incorporation or by-laws or any agreement
between it and its stockholders;
(xiii) use its reasonable best efforts to obtain the consent
or approval of each governmental agency or authority, whether
federal, state or local, which may be required to effect the Shelf
Registration or the offering or sale in connection therewith or to
enable the selling Electing Holder or Electing Holders to offer, or
to consummate the disposition of, their Registrable Notes;
(xiv) cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold,
which certificates shall be printed, lithographed or engraved, or
produced by any combination of such methods, and which shall not
15
bear any restrictive legends; and, in the case of an underwritten
offering, enable such Registrable Notes to be in such denominations
and registered in such names as the managing underwriters may
request at least two business days prior to any sale of the
Registrable Notes;
(xv) provide a CUSIP number for all Registrable Notes, not
later than the applicable Effective Date;
(xvi) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts" underwriting
agreements or similar agreements, as appropriate, including
customary provisions relating to indemnification and contribution,
and take such other actions in connection therewith as any Electing
Holders aggregating at least 25% in aggregate principal amount of
the Registrable Notes at the time outstanding shall reasonably
request in order to expedite or facilitate the disposition of such
Registrable Notes;
(xvii) if any portion of the offering contemplated by the
Shelf Registration is an underwritten offering or is made through a
placement or sales agent or any other entity, (A) make such
representations and warranties to the Electing Holders covered by
such Shelf Registration and the placement or sales agent, if any,
therefor and the underwriters, if any, thereof in form, substance
and scope as are customarily made in connection with an underwritten
offering of debt securities; (B) obtain an opinion of counsel to the
Company in customary form and covering such matters, of the type
customarily covered by such an opinion, as the managing
underwriters, if any, or as any Electing Holders of at least 25% in
aggregate principal amount of the Registrable Notes at the time
outstanding may reasonably request, addressed to such Electing
Holder or Electing Holders and the placement or sales agent, if any,
therefor and the underwriters, if any, thereof and dated the
effective date of such Shelf Registration Statement (and if such
Shelf Registration Statement contemplates an underwritten offering
of a part or all of the Registrable Notes, dated the date of the
closing under the underwriting agreement relating thereto) (it being
agreed that the matters to be covered by such opinion shall include
the due incorporation and good standing of the Company and its
subsidiaries; the due authorization, execution and delivery of the
relevant agreement of the type referred to in Section 3(d)(xvi)
hereof; the due authorization, execution, authentication and
issuance, and the validity and enforceability, of the Notes; the
absence of material legal or governmental proceedings involving the
Company; the absence of a breach by the Company or any of its
subsidiaries of, or a default under, material agreements binding
upon the Company or any subsidiary of the Company; the absence of
governmental approvals required to be obtained in connection with
the Shelf Registration, the offering and sale of the Registrable
Notes, this Exchange and Registration Rights
16
Agreement or any agreement of the type referred to in Section
3(d)(xvi) hereof, except such approvals as may be required under
state securities or blue sky laws; the material compliance as to
form of such Shelf Registration Statement and any documents
incorporated by reference therein and of the Indenture with the
requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder,
respectively; and, as of the date of the opinion and of the Shelf
Registration Statement or most recent post-effective amendment
thereto, as the case may be, the absence from such Shelf
Registration Statement and the prospectus included therein, as then
amended or supplemented, and from the documents incorporated by
reference therein (in each case other than the financial statements
and other financial information contained therein) of an untrue
statement of a material fact or the omission to state therein a
material fact necessary to make the statements therein not
misleading (in the case of such documents, in the light of the
circumstances existing at the time that such documents were filed
with the Commission under the Exchange Act)); (C) obtain a "cold
comfort" letter or letters from the independent certified public
accountants of the Company addressed to the Electing Holders, the
placement or sales agent, if any, therefor or the underwriters, if
any, thereof, dated (i) the effective date of such Shelf
Registration Statement and (ii) the effective date of any prospectus
supplement to the prospectus included in such Shelf Registration
Statement or post-effective amendment to such Shelf Registration
Statement which includes unaudited or audited financial statements
as of a date or for a period subsequent to that of the latest such
statements included in such prospectus (and, if such Shelf
Registration Statement contemplates an underwritten offering
pursuant to any prospectus supplement to the prospectus included in
such Shelf Registration Statement or post-effective amendment to
such Shelf Registration Statement which includes unaudited or
audited financial statements as of a date or for a period subsequent
to that of the latest such statements included in such prospectus,
dated the date of the closing under the underwriting agreement
relating thereto), such letter or letters to be in customary form
and covering such matters of the type customarily covered by letters
of such type; (D) deliver such documents and certificates, including
officers' certificates, as may be reasonably requested by any
Electing Holders of at least 25% in aggregate principal amount of
the Registrable Notes at the time outstanding or the placement or
sales agent, if any, therefor and the managing underwriters, if any,
thereof to evidence the accuracy of the representations and
warranties made pursuant to clause (A) above or those contained in
Section 5(a) hereof and the compliance with or satisfaction of any
agreements or conditions contained in the underwriting agreement;
and (E) undertake such obligations relating to expense
reimbursement, indemnification and contribution as are no less
favorable than those provided in Section 6 hereof;
(xviii) notify in writing each holder of Registrable Notes of
any proposal by
17
the Company to amend or waive any provision of this Exchange and
Registration Rights Agreement pursuant to Section 9(h) hereof and of
any amendment or waiver effected pursuant thereto, each of which
notices shall contain the text of the amendment or waiver proposed
or effected, as the case may be;
(xix) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Notes or participate
as a member of an underwriting syndicate or selling group or "assist
in the distribution" (within the meaning of the Rules of Fair
Practice and the By-Laws of the National Association of Securities
Dealers, Inc. ("NASD") or any successor thereto, as amended from
time to time) thereof, whether as an Electing Holder or as an
underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, assist such broker-dealer in
complying with the requirements of such Rules and By-Laws, including
by providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the
requirements of the Rules of Fair Practice of the NASD; and
(xx) use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission; and make
generally available to its securityholders as soon as practicable
but in any event not later than eighteen months after the effective
date of such Shelf Registration Statement, an earning statement of
the Company and its subsidiaries complying with Section I I (a) of
the Securities Act (including, at the option of the Company, Rule
158 thereunder).
(e) In the event that the Company would be required, pursuant to Section
3(d)(viii)(F) above, to notify the selling Electing Holders, the placement
or sales agent, if any, therefor and the managing underwriters, if any,
thereof, the Company shall prepare and furnish as promptly as practicable
to each of the Electing Holders, to each placement or sales agent, if any,
and to each such underwriter, if any, a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to
purchasers of Registrable Notes, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission
thereunder and shall 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 not misleading in light of the
circumstances then existing. Each Electing Holder and-agent therefor or
underwriter thereof agrees that upon receipt of any notice from the
Company pursuant to Section 3(d)(viii)(F) hereof, such Electing Holder,
agent or underwriter shall forthwith discontinue the disposition of
Registrable Notes pursuant to the Shelf Registration Statement applicable
to such Registrable Notes until such Electing Holder, agent or underwriter
shall have received copies of such amended or supplemented prospectus, and
if so directed by the Company, such Electing Holder, agent or underwriter
shall deliver to the Company (at the Company's expense) all
18
copies, other than permanent file copies; then in their possession of the
prospectus covering such Registrable Notes at the time of receipt of such
notice.
(f) In the event of a Shelf Registration, in addition to the information
required to be provided by each Electing Holder in its Notice
Questionnaire, the Company may require each Electing Holder as to which
any Shelf Registration pursuant to Section 2(b) is being effected to
furnish to the Company such additional information regarding such Electing
Holder and such Electing Holder's intended method of distribution of such
Registrable Notes as may be required in order to comply with the
Securities Act. Each such Electing Holder agrees to notify the Company as
promptly as practicable of any inaccuracy or change in information
previously furnished by such Electing Holder to the Company or of the
occurrence of any event in either case as a result of which any prospectus
relating to such Shelf Registration contains or would contain an untrue
statement of a material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such Registrable Notes
or omits to state any material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such Registrable Notes
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing, and promptly
to furnish to the Company any additional information required to correct
and update any previously furnished information or required so that such
prospectus shall not contain, with respect to such Electing Holder or the
disposition of such Registrable Notes, 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 in light of the
circumstances then existing.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly all
expenses incident to the Company's performance of or compliance with this
Exchange and Registration Rights Agreement, including (a) all Commission and any
NASD registration, filing and review fees and expenses including reasonable fees
and disbursements of counsel for the placement or sales agent or underwriters in
connection with such registration, filing and review, (b) all fees and expenses
in connection with the qualification of the Notes for offering and sale under
the State securities and blue sky laws referred to in Section 3(d)(xii) hereof,
including reasonable fees and disbursements of counsel for the Electing Holders
(subject to the limitation of clause (i) below) or underwriters in connection
with such qualification and determination, (c) all expenses relating to the
preparation, printing, production, distribution and reproduction of each
registration statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Notes for delivery
and blue sky or legal investment memoranda and certificates representing the
Notes, (d) fees and expenses of the Trustee under the Indenture, any agent of
the Trustee and any counsel for the Trustee and of any collateral agent or
custodian, (e) fees, disbursements and
19
expenses of counsel and independent certified public accountants of the Company
(including the expenses of any opinions or "cold comfort" letters required by or
incident to such performance and compliance), (f) fees, disbursements and
expenses of one counsel for the Electing Holders retained in connection with a
Shelf Registration, as selected by the Electing Holders of at least a majority
in aggregate principal amount of the Registrable Notes held by Electing Holders
(which counsel shall be reasonably satisfactory to the Company) and (g) any fees
charged by securities rating services for rating the Notes (collectively, the
"Registration Expenses"). To the extent that any Registration Expenses are
incurred, assumed or paid by any holder of Registrable Notes or any placement or
sales agent therefor or underwriter thereof, the Company shall reimburse such
person for the full amount of the Registration Expenses so incurred, assumed or
paid promptly after receipt of a request therefor. Notwithstanding the
foregoing, the holders of the Registrable Notes being registered shall pay all
agency fees and commissions and underwriting discounts and commissions
attributable to the sale of such Registrable Notes and the fees and
disbursements of any counsel or other advisors or experts retained by such
holders (severally or jointly), other than the counsel and experts specifically
referred to above, and shall bear all out-of-pocket expenses of such holders
incurred in connection with the registration of the Registrable Notes.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, each Purchaser
and each of the holders from time to time of Registrable Notes that:
(a) Each registration statement covering Registrable Notes and each
prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(d) or Section 3(c) hereof and
any further amendments or supplements to any such registration statement
or prospectus, when it becomes effective or is filed with the Commission,
as the case may be, and, in the case of an underwritten offering of
Registrable Notes, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder and 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 not misleading; and at all times subsequent to the Effective Date
when a prospectus would be required to be delivered under the Securities
Act, other than (A) from (i) such time as a notice has been given to
holders of Registrable Notes pursuant to Section 3(d)(viii)(F) or Section
3(c)(iii)(F) hereof until (ii) such time as the Company furnishes an
amended or supplemented prospectus pursuant to Section 3(e) or Section
3(c)(iv) hereof and (B) during a Suspension Period, each such registration
statement, and each prospectus (including any summary prospectus)
contained therein or furnished pursuant to Section 3(d) or Section 3(c)
hereof, as then amended or supplemented, will conform in all material
respects to the applicable requirements of the Securities Act and
20
the Trust Indenture Act and the rules and regulations of the Commission
thereunder and 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 not misleading in the light of the
circumstances then existing; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to
the Company by a holder of Registrable Notes expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred to
in Section 5(a) hereof, when they become or became effective or are or
were filed with the Commission, as the case may be, will conform or
conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and none of such documents will
contain or contained an untrue statement of a material fact or will omit
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by a holder of Registrable
Notes expressly for use therein.
(c) The compliance by the Company with all of the provisions of this
Exchange and Registration Rights Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any subsidiary of the
Company is a party or by which the Company or any subsidiary of the
Company is bound or to which any of the property or assets of the Company
or any subsidiary of the Company is subject, nor will such action result
in any violation of the provisions of the certificate of incorporation, as
amended, or the by-laws of the Company or any Guarantor or any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any subsidiary of the Company or
any of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the consummation by the Company and the
Guarantors of the transactions contemplated by this Exchange and
Registration Rights Agreement, except the registration under the
Securities Act of the Notes, qualification of the Indenture under the
Trust indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under State securities
or blue sky laws in connection with the offering and distribution of the
Notes.
(d) This Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by the Company.
6. Indemnification.
21
(a) Indemnification by the Company. The Company shall indemnify and hold
harmless each of the holders of Registrable Notes included in an Exchange
Offer Registration Statement, each of the Electing Holders of Registrable
Notes included in a Shelf Registration Statement, and each person who
participates as a placement or sales agent or as an underwriter in any
offering or sale of such Registrable Notes against any losses, claims,
damages or liabilities, joint or several, to which such holder, agent or
underwriter may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Exchange
Offer Registration Statement or Shelf Registration Statement, as the case
may be, under which such Registrable Notes were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein or furnished by the Company to any such Electing Holder, agent or
underwriter, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Company shall, and it hereby
agrees to, reimburse such holder, such Electing Holder, such agent and
such underwriter for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Company
shall not be liable to any such person in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, or preliminary, final or
summary prospectus, or amendment or supplement thereto, in reliance upon
and in conformity with written information furnished to the Company by
such person expressly for use therein;
(b) Indemnification by the Electing Holders and any, agents and
Underwriters. The Company may require, as a condition to including any
Registrable Notes in any registration statement filed pursuant to Section
2(b) hereof and to entering into any underwriting agreement with respect
thereto, that the Company shall have received an undertaking reasonably
satisfactory to it from the Electing Holder of such Registrable Notes and
from each underwriter named in any such underwriting agreement, severally
and not jointly, to (i) indemnify and hold harmless the Company, and all
other holders of Registrable Notes, against any losses, claims, damages or
liabilities to which the Company or such other holders of Registrable
Notes may become subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in such registration
statement, or any preliminary, final or summary prospectus contained
therein or furnished by the Company to any such Electing Holder, agent or
underwriter, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to
22
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company by such Electing Holder or
underwriter expressly for use therein, and (ii) reimburse the Company for
any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that no such Electing
Holder shall be required to undertake liability to any person under this
Section 6(b) for any amounts in excess of the dollar amount of the
proceeds to be received by such Electing Holder from the sale of such
Electing Holder's Registrable Notes pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is
to be made against an indemnifying party pursuant to the indemnification
provisions of or contemplated by this Section 6, notify such indemnifying
party in writing of the commencement of such action; but the omission so
to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party other than under the
indemnification provisions of or contemplated by Section 6(a) or 6(b)
hereof. In case any such action shall be brought against any indemnified
party and it shall notify an indemnifying party of the commencement
thereof, such indemnifying party shall be entitled to participate therein
and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, such indemnifying
party shall not be liable to such indemnified party for any legal expenses
of other counsel or any other expenses, in each case subsequently incurred
by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall,
without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising
out of such action 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 party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or
insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in
23
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact
relates to information supplied by such indemnifying party or by such
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The parties hereto agree that it would not be just and equitable
if contributions pursuant to this Section 6(d) were determined by pro rata
allocation (even if the holders or any agents or underwriters or all of
them 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 in this Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred
by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section
6(d), no holder shall be required to contribute any amount in excess of
the amount by which the dollar amount of the proceeds received by such
holder from the sale of any Registrable Notes (after deducting any fees,
discounts and commissions applicable thereto) exceeds the amount of any
damages which such holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission,
and no underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Registrable Notes
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The holders' and any underwriters'
obligations in this Section 6(d) to contribute shall be several in
proportion to the principal amount of Registrable Notes registered or
underwritten, as the case may be, by them and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and
partner of each holder, agent and underwriter and each person, if any, who
controls any holder, agent or underwriter within the meaning of the
Securities Act; and the obligations of the holders and any agents or
underwriters contemplated by this Section 6 shall be in addition to any
liability which the
24
respective holder, agent or underwriter may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director
of the Company (including any person who, with his consent, is named in
any registration statement as about to become a director of the Company)
and to each person, if any, who controls the Company within the meaning of
the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Notes covered by
the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be
designated by Electing Holder's holding at least a majority in aggregate
principal amount of the Registrable Notes to be included in such offering,
provided that such designated managing underwriter or underwriters is or
are reasonably acceptable to the Company.
(b) Participation by Holders. Each holder of Registrable Notes hereby
agrees with each other such holder that no such holder may participate in
any underwritten offering hereunder unless such holder (i) 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 (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable Notes that to the
extent it shall be required to do so under the Exchange Act, the Company shall
timely file the reports required to be filed by it under the Exchange Act or the
Securities Act (including the reports under Section 13 and 15(d) of the Exchange
Act referred to in subparagraph (c)(1) of Rule 144 adopted by the Commission
under the Securities Act) and the rules and regulations adopted by the
Commission thereunder, and shall take such further action as any holder of
Registrable Notes may reasonably request, all to the extent required from time
to time to enable such holder to sell Registrable Notes without registration
under the Securities Act within the limitations of the exemption provided by
Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or any similar or successor rule or regulation hereafter adopted by the
Commission. Upon the request of any holder of Registrable Notes in connection
with that holder's sale pursuant to Rule 144, the Company shall deliver to such
holder a written statement as to whether it has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants
25
and agrees that it has not granted, and shall not grant, registration
rights with respect to Registrable Notes or any other securities which
would be inconsistent with the terms contained in this Exchange and
Registration Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge that there would
be no adequate remedy at law if the Company fails to perform any of their
respective obligations hereunder and that the Purchasers and the holders
from time to time of the Registrable Notes may be irreparably harmed by
any such failure, and accordingly agree that the Purchasers and such
holders, in addition to any other remedy to which they may be entitled at
law or in equity, shall be entitled to compel specific performance of the
respective obligations of the Company and Allied under this Exchange and
Registration Rights Agreement in accordance with the terms and conditions
of this Exchange and Registration Rights Agreement, in any court of the
United States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, if delivered personally or by
courier, or three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) as follows: If
to the Company, to it at Xxx Xxxxxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx
00000, Attention: Chief Financial Officer, with a copy to Cravath, Swaine
& Xxxxx, Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx X. Xxxxx, and if to a holder, to the address of such
holder set forth in the security register or other records of the Company,
or to such other address as the Company or any such holder may have
furnished to the other in writing in accordance herewith, except that
notices of change of address shall be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this Exchange and
Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the parties hereto and the holders
from time to time of the Registrable Notes and the respective successors
and assigns of the parties hereto and such holders. In the event that any
transferee of any holder of Registrable Notes shall acquire Registrable
Notes, in any manner, whether by gift, bequest, purchase, operation of law
or otherwise, such transferee shall, without any further writing or action
of any kind, be deemed a beneficiary hereof for all purposes and such
Registrable Notes shall be held subject to all of the terms of this
Exchange and Registration Rights Agreement, and by taking and holding such
Registrable Notes such transferee shall be entitled to receive the
benefits of, and be conclusively deemed to have agreed to be bound by all
of the applicable terms and provisions of this Exchange and Registration
Rights Agreement. If the Company shall so request, any such successor,
assign or transferee shall agree in writing to acquire and hold the
Registrable Notes subject to all of the applicable terms hereof.
26
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and
Registration Rights Agreement or made pursuant hereto shall remain in full
force and effect regardless of any investigation (or statement as to the
results thereof) made by or on behalf of any holder of Registrable Notes,
any director, officer or partner of such holder, any agent or underwriter
or any director, officer or partner thereof, or any controlling person of
any of the foregoing, and shall survive delivery of and payment for the
Registrable Notes pursuant to the Purchase Agreement and the transfer and
registration of Registrable Notes by such holder and the consummation of
an Exchange Offer.
(f) LAW GOVERNING. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted
for convenience only, do not constitute a part of this Exchange and
Registration Rights Agreement and shall not affect in any way the meaning
or interpretation of this Exchange and Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and Registration Rights
Agreement and the other writings referred to herein (including the
Indenture and the form of Notes) or delivered pursuant hereto which form a
part hereof contain the entire understanding of the parties with respect
to its subject matter. This Exchange and Registration Rights Agreement
supersedes all prior agreements and understandings between the parties
with respect to its subject matter. This Exchange and Registration Rights
Agreement may be amended and the observance of any term of this Exchange
and Registration Rights Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by a
written instrument duly executed by the Company and the holders of at
least 50 percent in aggregate principal amount of the Registrable Notes at
the time outstanding. Each holder of any Registrable Notes at the time or
thereafter outstanding shall be bound by any amendment or waiver effected
pursuant to this Section 9(h), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such Registrable
Notes or is delivered to such holder. 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 the holders whose
Registrable Notes are being sold, tendered or registered and that does not
affect the rights of other holders, may be given by at least a majority of
such holders, determined on the basis of Registrable Notes sold, tendered
or registered.
(i) Inspection. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights
Agreement and a complete list of
27
the names and addresses of all the holders of Registrable Notes shall be
made available for inspection and copying on any business day by any
holder of Registrable Notes for proper purposes only (which shall include
any purpose related to the rights of the holders of Registrable Notes
under the Notes, the Indenture and this Agreement) at the offices of the
Company at the address thereof set forth in Section 9(c) above and at the
office of the Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the same
instrument.
Agreed to and accepted as of the date referred to above.
X.X. XXXXXXXXX INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
and Chief Financial Officer
THE DUN & BRADSTREET CORPORATION
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
XXXXXXX, SACHS & CO.
CHASE SECURITIES INC.
By: /s/ Xxxxxxx Xxxxx & Co.
-------------------------------------
(Xxxxxxx, Sachs & Co.)
28
Exhibit A
X.X. XXXXXXXXX INC.
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE](1)
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in X.X. Xxxxxxxxx Inc. (the
"Company") 9 1/8% Senior Subordinated Notes due June 1, 2008 (the "Securities")
are held.
The Company is in the process of registering the Securities under the
Securities Act of 1933 for resale by the beneficial owners thereof. In order to
have their Securities included in the registration statement, beneficial owners
must complete and return the enclosed Notice of Registration Statement and
Selling Securityholder Questionnaire (the "Notice and Questionnaire").
It is important that beneficial owners of the Securities receive a copy of
the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact X.X. Xxxxxxxxx
Inc., Xxx Xxxxxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X.
Xxxxxxxxx.
--------
(1) Not less than 21 calendar days from date of mailing.
29
X.X. Xxxxxxxxx Inc.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
[Date]
Reference is hereby made to the Exchange and Registration Rights Agreement
(the "Exchange and Registration Rights Agreement") by and between X.X. Xxxxxxxxx
Inc. (the "Company"), The Dun & Bradstreet Corporation and the Purchasers named
therein. Pursuant to the Exchange and Registration Rights Agreement, the Company
has filed with the United States Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Company's 9 1/8% Senior
Subordinated Notes due June 1, 2008 (the "Securities"). A copy of the Exchange
and Registration Rights Agreement is attached hereto. All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to have the
Registrable Securities beneficially owned by it included in the Shelf
Registration Statement. In order to have Registrable Securities included in the
Shelf Registration Statement, this Notice of Registration Statement and Selling
Securityholder Questionnaire ("Notice and Questionnaire") must be completed,
executed and delivered to the Company's counsel at the address set forth herein
for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial owners of
Registrable Securities who do not complete, execute and return this Notice and
Questionnaire by such date (i) will not be named as selling securityholders in
the Shelf Registration Statement and (ii) may not use the Prospectus forming a
part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
30
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Exchange and Registration
Rights Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete:
31
QUESTIONNAIRE
(a) Full Legal Name of Selling Securityholder:
--------------------------------------------------------------------------------
(i) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in Item (3) below:
--------------------------------------------------------------------------------
(ii) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) Through Which Registrable Securities
Listed in Item (3) below are Held:
--------------------------------------------------------------------------------
(b) Address for Notices to Selling Securityholder:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Telephone: ________________
Fax: ________________
Contact Person: ____________
(c) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(i) Principal amount at maturity of Registrable Securities
beneficially owned:___________________________________________
CUSIP No(s). of such Registrable Securities:______________________________
(ii) Principal amount at maturity of Securities other than
Registrable Securities beneficially owned:____________________
32
CUSIP No(s). of such other Securities:
(iii) Principal amount at maturity of Registrable Securities which
the undersigned wishes to be included in the Shelf
Registration Statement:_______________________________________
CUSIP No(s). of such Registrable Securities to be included in the Shelf
Registration Statement:___________________________________________________
(d) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other securities
of the Company, other than the Securities listed above in Item (3).
State any exceptions here:
(e) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or more) has
held any position or office or has had any other material relationship with the
Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
(f) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder intends
to distribute the Registrable Securities listed above in Item (3) only as
follows (if at all): Such Registrable Securities may be sold from time to time
directly by the undersigned Selling Securityholder or, alternatively, through
underwriters, broker-dealers or agents. Such Registrable Securities may be sold
in one or more transactions at fixed prices, at prevailing market prices at the
time of sale, at varying prices determined at the time of sale, or at negotiated
prices. Such sales may be effected in transactions (which may involve crosses or
block transactions) (i) on any national securities exchange or quotation service
on which the Registered Securities may be listed or quoted at the time of sale,
(ii) in the over-the-counter market, (iii) in transactions otherwise than on
such exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the Registrable Securities
or otherwise, the Selling Securityholder may enter into hedging transactions
with broker-dealers, which may in turn
33
engage in short sales of the Registrable Securities in the course of hedging the
positions they assume. The Selling Securityholder may also sell Registrable
Securities short and deliver Registrable Securities to close out such short
positions, or loan or pledge Registrable Securities to broker-dealers that in
turn may sell such securities.
State any exceptions here:
(g) Whether you are a corporation or not, the following three questions
should be answered. If you are a corporation these questions should
also be answered with respect to your officers, directors and
holders of 5% or more of your equity securities; if you are a
partnership such questions should also be answered with respect to
your general partners.
(i) Except as set forth below in this Item (7)(a), neither the
undersigned nor any of its affiliates(2) is a
---------
(2) NASD Rule 2720 defines the term "affiliate" to mean a company which
controls, is controlled by or is under common control with a member. The term
affiliate is presumed to include the following:
(i) a company will be presumed to control a member if the company
beneficially owns 10 percent or more of the outstanding voting securities of a
member which is a corporation, or beneficially owns a partnership interest in 10
percent or more of the distributable profits or losses of a member which is a
partnership;
(ii) a member will be presumed to control a company if the member and
persons associated with the member beneficially own 10 percent or more of the
outstanding voting securities of a company which is a corporation, or
beneficially own a partnership interest in 10 percent or more of the
distributable profits or losses of a company which is a partnership;
(iii) a company will be presumed to be under common control with a member
if:
(1) the same natural person or company controls both the member and
company by beneficially owning 10 percent or more of the outstanding
voting securities of a member or company which is a corporation, or by
beneficially owning a partnership interest in 10 percent or more of the
distributable profits or losses of a member or company which is a
partnership; or
(2) a person having the power to direct or cause the direction of
the management or policies of the member or the company also has the power
to direct or cause the direction of the management or policies of the
other entity in question.
34
member(3) of the National Association of Securities Dealers, Inc. (the "NASD")
or a person associated with a member(3) of the NASD.
State any exceptions here:
(ii) Except as set forth below in this Item (7) (b), the
undersigned does not own stock or other securities of any NASD
member not purchased in the open market.
State any exceptions here:
(iii) Except as set forth below in this Item (7)(c), the undersigned
has not made any outstanding subordinated loans to any NASD
member.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Regulation M (which governs manipulation, stabilization and trading
activity during a distribution of securities).
In the event that the Selling Securityholder transfers all or any portion
of the Registrable Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of
the information
--------
(3) Article I of the NASD's By-Laws defines the term "member " to mean any
broker or dealer admitted to membership in the NASD and defines the term "person
associated with a member" to mean every sole proprietor, partner, officer,
director or branch manager of any member, or any natural person occupying a
similar status or performing similar functions, or any natural person engaged in
the investment banking or securities business who is directly or indirectly
controlling or controlled by such member (for example, any employee), whether or
not such person is registered or exempt from registration with the NASD.
35
contained herein in its answers to Items (1) through (7) above and the inclusion
of such information in the Shelf Registration Statement and related Prospectus.
The Selling Securityholder understands that such information will be relied upon
by the Company, and any underwriters in an underwritten offering of such Selling
Securityholder's Registrable Securities listed in Item(3) above, in connection
with the preparation of the Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section
3(d) of the Exchange and Registration Rights Agreement to provide such
information as may be required by law for inclusion in the Shelf Registration
Statement, the Selling Securityholder agrees to promptly notify the Company of
any inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration Statement
remains in effect. All notices hereunder and pursuant to the Exchange and
Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
X.X. Xxxxxxxxx Inc.
Xxx Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
(000) 000-0000
(ii) With a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
(000) 000-0000
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above). This Agreement shall be governed in all respects by the laws of the
State of New York.
36
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated:
-------------
--------------------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By:
-----------------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx (000) 000-0000
37
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Bank of New York
X.X. Xxxxxxxxx Inc.
x/x Xxx Xxxx xx Xxx Xxxx
------------------------
------------------------
------------------------
Attention: Trust Officer
Re: X.X. Xxxxxxxxx Inc. (the "Company")
9 1/8% Senior Subordinated Notes due June 1, 2008s
Dear Sirs:
Please be advised that __________________________ has transferred
$__________ aggregate principal amount at maturity of the above-referenced Notes
pursuant to an effective Registration Statement on Form ___ (File No. 333-_____)
filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of
the Securities Act of 1933, as amended, have been satisfied and that the
above-named beneficial owner of the Notes is named as a "Selling Holder" in the
Prospectus dated ____________, 199_ or in supplements thereto, and that the
aggregate principal amount at maturity of the Notes transferred are the Notes
listed in such Prospectus opposite such owner's name.
Dated:
Very truly yours,
--------------------------------------------
(Name)
By:
-----------------------------------------
(Authorized Signature)
On behalf of each of the Purchasers
