EXHIBIT 10.8
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REGISTRATION RIGHTS AGREEMENT
among
NEW CENTURY FINANCIAL CORPORATION,
BEAR, XXXXXXX & CO. INC.,
and
THE OTHER INITIAL PURCHASERS REFERRED TO HEREIN
Dated as of July 8, 2003
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This REGISTRATION RIGHTS AGREEMENT, dated as of July 8, 2003, among NEW
CENTURY FINANCIAL CORPORATION, a Delaware corporation (together with any
successor entity, herein referred to as the "Issuer"), BEAR, XXXXXXX & CO. INC.
(the "Representative"), and the other parties referred to in Annex A hereto
(each, an "Initial Purchaser" and collectively, the "Initial Purchasers").
Pursuant to the Purchase Agreement, dated July 2, 2003, between the Issuer
and the Initial Purchasers (the "Purchase Agreement"), the Initial Purchasers
have agreed to purchase from the Issuer $175,000,000 aggregate principal amount
at maturity of 3.50 % Convertible Senior Notes due 2008 (the "Notes") (and, at
the Initial Purchasers' option, up to an additional $35,000,000 aggregate
principal amount of Notes to cover over-allotments, if any). The Notes will be
convertible into fully paid, nonassessable common stock, par value $0.01 per
share, of the Issuer (the "Common Stock") on the terms, and subject to the
conditions, set forth in the Indenture (as defined herein). To induce the
Initial Purchasers to purchase the Notes, and in satisfaction of a condition to
the Initial Purchasers' obligations under the Purchase Agreement, the Issuer has
agreed to provide the registration rights set forth in this Agreement.
The Company agrees with the Initial Purchasers (i) for their benefit as
Initial Purchasers and (ii) for the benefit of the beneficial owners (including
the Initial Purchasers) from time to time of the Notes and the beneficial owners
from time to time of the Common Stock issued upon conversion of the Notes (each
of the foregoing a "Holder"), as follows:
1. Definitions.
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As used in this Agreement, the following capitalized terms shall have the
following meanings:
"Additional Amounts" shall have the meaning as defined in Section 3(a)
hereof.
"Additional Amounts Payment Date" shall mean each interest payment date
with respect to the Notes and each June 30 and December 30 in the case of the
Common Stock.
"Additional Effectiveness Target Date" shall have the meaning as defined in
Section 2(a)(ii)(B) hereof.
"Additional Shelf Filing Date" shall have the meaning as defined in Section
2(a)(ii)(A) hereof.
"Additional Shelf Registration Statement" shall have the meaning as defined
in Section 2(a)(ii)(A) hereof.
"Advice" shall have the meaning as defined in Section 4(c)(ii) hereof.
"Affiliate" shall mean with respect to any specified Person, an
"Affiliate," as defined in Rule 144 under the Securities Act, of such Person.
"Agreement" shall mean this Registration Rights Agreement, as it may be
amended from time to time in accordance with the terms hereof.
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"Blue Sky Application" shall have the meaning as defined in Section 6(a)(i)
hereof.
"Broker-Dealer" shall mean any broker or dealer registered under the
Exchange Act.
"Business Day" shall mean each day of the year other than a Saturday or
Sunday or other day on which banking institutions in the City of New York are
required or authorized by law or regulation to close.
"Closing Date" shall mean the date of this Agreement.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Common Stock" shall mean the shares of common stock, par value $0.001 per
share, of the Issuer and any other shares of capital stock that may constitute
"Common Stock" for purposes of the Indenture.
"Control" shall mean with respect to a Person, the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ability to exercise voting power,
by contract or otherwise.
"Effectiveness Period" shall have the meaning as defined in Section
2(a)(iii) hereof.
"Effectiveness Target Date" shall have the meaning as defined in Section
2(a)(i) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Holder" shall mean a Person who owns, beneficially or otherwise,
Registrable Securities.
"Indemnified Party" shall have the meaning as defined in Section 6(a)
hereof.
"Indenture" shall mean the Indenture, dated as of June 30, 2003, between
the Issuer and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"), pursuant to
which the Notes are to be issued, as such Indenture is amended, modified or
supplemented from time to time in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning as defined in the preamble
hereto.
"Issuer" shall have the meaning as defined in the preamble hereto.
"Majority of Holders" shall mean Holders holding over 50% of the aggregate
principal amount of Notes outstanding; provided that, for purposes of this
definition, a Holder of shares of Common Stock that constitute Registrable
Securities and that were issued upon conversion of the Notes shall be deemed to
hold an aggregate principal amount of Notes (in addition to the principal amount
of Notes held by such Holder) equal to the product of (x) the number of such
shares of Common Stock held by such Holder and (y) the prevailing conversion
price at the time
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of such conversion, such prevailing conversion price as determined in accordance
with the Indenture.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Notes" shall have the meaning as defined in the preamble hereto, up to
$210,000,000 aggregate principal amount at maturity.
"Person" shall mean an individual, partnership, corporation, unincorporated
organization, trust, joint venture or a government or agency or political
subdivision thereof.
"Prospectus" shall mean the prospectus included in a Shelf Registration
Statement or an Additional Shelf Registration Statement, as applicable,
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 415 promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all materials incorporated by
reference or deemed to be incorporated by reference into such Prospectus.
"Questionnaire Deadline" shall have the meaning as defined in Section 2(b)
hereof.
"Record Holder" shall mean with respect to any Additional Amounts Payment
Date, each Person who is a Holder on the record date with respect to the
interest payment date on which such Additional Amounts Payment Date shall occur.
In the case of a Holder of shares of Common Stock issued upon conversion of the
Notes, "Record Holder" shall mean each Person who is a Holder of shares of
Common Stock that constitute Registrable Securities on the May 15 or November 15
immediately preceding the Additional Amounts Payment Date.
"Registrable Securities" shall mean each Note and each share of Common
Stock issued upon conversion of Notes, and any securities into or for which such
Common Stock has been converted, and any security issued with respect thereto
upon any stock dividend, split or similar event, until, in the case of any such
security, (A) the earliest of (i) its effective registration under the
Securities Act and resale in accordance with the Registration Statement covering
it, (ii) expiration of the holding period that would be applicable thereto under
Rule 144(k) under the Securities Act were it not held by an Affiliate of the
Issuer, (iii) its sale to the public pursuant to Rule 144 under the Securities
Act and (iv) the date that is two years after the later of the original issuance
of the Notes and the last date that the Issuer or any of its Affiliates was the
owner of any such Notes (or any predecessor thereto), and (B) as a result of the
event or circumstance described in any of the foregoing clauses (i) through
(iv), the legends with respect to transfer restrictions required under the
Indenture are removed or removable in accordance with the terms of the Indenture
or such legend, as the case may be.
"Registration Default" shall have the meaning as defined in Section
3(a)(vi) hereof.
"Registration Statement" shall mean any registration statement of the
Issuer that covers any of the Registrable Securities pursuant to the provisions
of this Agreement including the Prospectus, amendments and supplements to such
registration statement, including post-effective
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amendments, all exhibits, and all materials incorporated by reference or
explicitly deemed to be incorporated by reference in such registration
statement.
"Sale Notice" shall have the meaning as defined in Section 4(e) hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the Commission thereunder.
"Shelf Filing Deadline" shall have the meaning as defined in Section
2(a)(i) hereof.
"Shelf Registration Statement" shall have the meaning as defined in Section
2(a)(i) hereof.
"Stockholder Approval" means (i) the authorization and approval by the
Company's stockholders in accordance with the Company's bylaws and applicable
law of the amendment to the Company's Amended and Restated Certificate of
Incorporation to increase the authorized number of shares of Common Stock to at
least 50,000,000 shares and (ii) the authorization and reservation of an
additional 1,340,000 shares of Common Stock by the Board of Directors of the
Company free from any preemptive rights to be made available for issuance by the
Company upon conversion of the Notes.
"Suspension Period" shall have the meaning as defined in Section 4(b)(i)
hereof.
"TIA" shall mean the Trust Indenture Act of 1939, as in effect on the date
the Indenture is qualified under that Act.
"Underwriting Majority" shall mean on any date, Holders holding at least 66
2/3% of the aggregate principal amount of the Registrable Securities outstanding
on such date; provided, that for the purpose of this definition, a holder of
shares of Common Stock that constitute Registrable Securities and issued upon
conversion of Notes shall be deemed to hold an aggregate principal amount of
Registrable Securities (in addition to the principal amount of Notes held by
such holder) equal to (x) the number of such shares of Common Stock that are
Registrable Securities held by such holder multiplied by (y) the then applicable
Conversion Price (as defined in the Indenture).
"Underwritten Registration" or "Underwritten Offering" shall mean a
registration in which securities of the Issuer are sold to an underwriter for
reoffering to the public.
2. Shelf Registration.
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(a) The Issuer shall:
(i) Do the following with respect to all Registrable
Securities that are duly authorized at the Shelf Filing Deadline:
(A) no later than 120 days after the date hereof (the
"Shelf Filing Deadline"), cause to be filed with the Commission a
registration statement pursuant to Rule 415 under the Securities
Act (the "Shelf
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Registration Statement"), which Shelf Registration Statement
shall provide for resales from time to time of all Registrable
Securities held by the Holders thereof;
(B) use its reasonable best efforts to cause the Shelf
Registration Statement to be declared effective by the Commission
no later than 210 days after the date hereof (the "Effectiveness
Target Date");
(ii) Do the following with respect to any Registrable
Securities that are not duly authorized at the Shelf Filing Deadline
and subsequently are duly authorized by the Stockholder Approval:
(A) no later than 120 days after the Stockholder Approval
(the "Additional Shelf Filing Deadline"), cause to be filed with
the Commission a registration statement pursuant to Rule 415
under the Securities Act (the "Additional Shelf Registration
Statement"), which Additional Shelf Registration Statement shall
provide for resales from time to time of all Registrable
Securities duly authorized by the Stockholder Approval and held
by the Holders thereof;
(B) use its reasonable best efforts to cause the
Additional Shelf Registration Statement to be declared effective
by the Commission no later than 210 days after the Stockholder
Approval (the "Additional Effectiveness Target Date"); and
(iii) subject to Section 4(b)(i) hereof, use its reasonable best
efforts to keep the Shelf Registration Statement or the Additional
Shelf Registration Statement, as applicable, continuously effective,
supplemented and amended as required by the provisions of Section 4(b)
hereof to the extent necessary to ensure that (A) it is available for
resales by the Holders of Registrable Securities entitled to the
benefit of this Agreement and (B) conforms with the requirements of
this Agreement and the Securities Act and the rules and regulations of
the Commission promulgated thereunder as announced from time to time
for a period (the "Effectiveness Period") ending on the earliest of:
(1) two years after the later of the last date of
original issuance of any of the Notes and the date on
which we or any of our Affiliates owned any of the Notes;
(2) the date on which Holders of Registrable
Securities are able to sell all of the Registrable
Securities immediately without restriction pursuant to
Rule 144(k) under the Securities Act;
(3) the date when all of the Registrable Securities
of those Holders that have provided the information
required pursuant to the terms of Section 2(b) hereof are
registered under the Shelf Registration Statement or the
Additional Shelf Registration
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Statement, as applicable, and disposed of in accordance
with the terms of the Shelf Registration Statement or the
Additional Shelf Registration Statement, as applicable;
and
(4) the date when all of the Registrable Securities
of those Holders that have provided the information
required pursuant to the terms of Section 2(b) hereof have
ceased to be outstanding (whether as a result of
redemption, repurchase and cancellation, conversion or
otherwise).
(b) No Holder of Registrable Securities may include any of its
Registrable Securities in the Shelf Registration Statement or the
Additional Shelf Registration Statement, as applicable, pursuant to this
Agreement unless such Holder furnishes to the Issuer in writing, prior to
or on the 30th Business Day after receipt of a request therefor (the
"Questionnaire Deadline"), such information as the Issuer may reasonably
request for use in connection with the Shelf Registration Statement, the
Additional Shelf Registration Statement, as applicable, or Prospectus or
preliminary Prospectus included therein and in any application to be filed
with or under state securities laws. In connection with all such requests
for information from Holders of Registrable Securities, the Issuer shall
notify such Holders of the requirements set forth in the preceding
sentence. Each Holder as to which the Shelf Registration Statement or the
Additional Shelf Registration Statement, as applicable, is being effected
agrees to furnish promptly to the Issuer all information required to be
disclosed in order to make information previously furnished to the Issuer
by such Holder not materially misleading. Notwithstanding any provision of
this Agreement to the contrary, the Issuer shall be under no obligation to
name any Holder in a Registration Statement that does not comply with the
Questionnaire Deadline of this paragraph 2(b) as further described under
Section 4(d).
3. Additional Amounts.
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(a) If:
(i) the Shelf Registration Statement has not been filed with
the Commission prior to or on the Shelf Filing Deadline,
(ii) the Shelf Registration Statement has not been declared
effective by the Commission prior to or on the Effectiveness Target
Date,
(iii) subject to the provisions of Section 4(b)(i) hereof, the
Shelf Registration Statement is filed and declared effective but,
during the Effectiveness Period and after the Effectiveness Target
Date, shall thereafter cease to be effective (without being succeeded
immediately by an Additional Shelf Registration Statement filed and
declared effective that provides for resales of all the Registrable
Securities that were covered by such Shelf Registration Statement) or
fail to be usable for its intended purpose for a period of time
(including any Suspension Period) that shall exceed 30 days in the
aggregate in any 3-month period or 60 days in the aggregate in any
365-day period,
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(iv) the Additional Shelf Registration Statement has not been
filed with the Commission prior to or on the Additional Shelf Filing
Deadline,
(v) the Additional Shelf Registration Statement has not been
declared effective by the Commission prior to or on the Additional
Effectiveness Target Date,
(vi) subject to the provisions of Section 4(b)(i) hereof, the
Additional Shelf Registration Statement is filed and declared
effective but, during the Effectiveness Period and after the
Additional Effectiveness Target Date, shall thereafter cease to be
effective or fail to be usable for its intended purpose for a period
of time (including any Suspension Period) that shall exceed 30 days in
the aggregate in any 3-month period or 60 days in the aggregate in any
365-day period
(each such event referred to in foregoing clauses (i) through (vi), a
"Registration Default"), then the Issuer hereby agrees to pay
additional amounts ("Additional Amounts") to each Holder from and
including the day following the Registration Default to but excluding
the day on which the Registration Default has been cured in an amount
equal to:
(A) with respect to such Holder's Notes, for the first
90-day period during which a Registration Default shall have
occurred and be continuing but excluding the day on which all
Registration Defaults have been cured, an amount equal to 0.25%
per annum on the applicable principal amount of such Holder's
then outstanding and not converted Notes, increasing to an amount
per annum on the principal amount of such Holder's then
outstanding and not converted Notes equal to 0.50% on the 91st
day, provided that in no event shall the aggregate Additional
Amounts pursuant to this clause accrue at a rate per annum
exceeding 0.50% of the sum of the applicable principal amount of
the then outstanding Notes;
(B) with respect to such Holder's Common Stock issued
upon conversion of Notes for the first 90-day period during which
a Registration Default shall have occurred and be continuing but
excluding the day on which all Registration Defaults have been
cured, an amount equal to 0.25% per annum on the applicable
principal amount of such Holder's converted Notes, increasing to
an amount per annum on the principal amount of such Holder's
converted Notes equal to 0.50% on the 91st day, provided that in
no event shall the aggregate Additional Amounts pursuant to this
clause accrue at a rate per annum exceeding 0.50% of the sum of
the applicable principal amount of the then converted Notes.
(b) All accrued Additional Amounts shall be paid in arrears to Record
Holders by the Issuer on each Additional Amounts Payment Date by wire
transfer of immediately
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available funds or by federal funds check; provided that any Additional
Amounts accrued with respect to any Registrable Securities or portion
thereof called for redemption on a redemption date or converted into Common
Stock on a conversion date prior to the Additional Amounts Payment Date
shall, in any such event, be paid instead to the Holder who submitted such
Note or portion thereof for redemption or conversion on the applicable
redemption date or conversion date, as the case may be, on such date (or
promptly following the conversion date, in the case of conversions).
Following the cure of all Registration Defaults relating to any particular
Note or share of Common Stock, the accrual of Additional Amounts with
respect to such Note or share of Common Stock will cease.
The Trustee shall be entitled, on behalf of Holders of Notes, to seek any
available remedy for the enforcement of this Agreement, including for the
payment of any Additional Amounts, provided, that the parties agree that the
sole monetary damages payable if any event described in Sections 3(a)(i)-(iv)
should occur shall be the payment of Additional Amounts. All obligations of the
Issuer set forth in this Section 3 that are outstanding with respect to any
Registrable Security at the time such security ceases to be a Registrable
Security shall survive until such time as all such obligations with respect to
such Registrable Security shall have been satisfied in full. The parties hereto
agree that the Additional Amounts provided for in this section constitutes a
reasonable estimate of the damages that may be incurred by Holders of
Registrable Securities by reason of the failure of the Shelf Registration
Statement or the Additional Shelf Registration Statement, as applicable, to be
filed or declared effective or available for effecting resales of Registrable
Securities in accordance with the provisions hereof.
4. Registration Procedures.
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(a) In connection with the Shelf Registration Statement or the
Additional Shelf Registration Statement, as applicable, the Issuer shall
prepare and file with the Commission a Shelf Registration Statement or an
Additional Shelf Registration Statement, as applicable, on Form S-1 or Form
S-3 or on any other appropriate form under the Securities Act permitting
registration of the Registrable Securities for resale by the Holders
thereof in accordance with the reasonable methods of distribution elected
by them, and use its reasonable best efforts to cause such Shelf
Registration Statement or Additional Shelf Registration Statement, as
applicable, to become effective and remain effective as provided herein. At
the time the Shelf Registration Statement or the Additional Shelf
Registration Statement, as applicable, is declared effective, each Holder
shall be named as a selling securityholder in the Shelf Registration
Statement or the Additional Shelf Registration Statement, as applicable,
and the related Prospectus in such a manner as to permit such Holder to
deliver such Prospectus to purchasers of Registrable Securities in
accordance with applicable law.
(b) In connection with the Shelf Registration Statement, the
Additional Shelf Registration Statement and any Prospectus required by this
Agreement to permit the sale or resale of Registrable Securities, the
Issuer shall:
(i) Subject to any notice by the Issuer in accordance with
this Section 4(b) of the existence of any fact or event of the kind
described in Section
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4(b)(iii)(D), use its reasonable best efforts to keep the Shelf
Registration Statement or the Additional Shelf Registration Statement,
as applicable, continuously effective during the Effectiveness Period;
upon the occurrence of any event that would cause the Shelf
Registration Statement, the Additional Shelf Registration Statement,
as applicable, or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not be effective and usable
for resale of Registrable Securities during the Effectiveness Period,
the Issuer shall file promptly an appropriate amendment to the Shelf
Registration Statement or the Additional Shelf Registration Statement,
as applicable, a prospectus supplement or a report filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act, in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either clause (A) or
(B), use its reasonable best efforts to cause such amendment to be
declared effective and the Shelf Registration Statement, or the
Additional Shelf Registration Statement, as applicable, and the
related Prospectus to become usable for their intended purposes as
soon as practicable thereafter. Notwithstanding the foregoing, the
Issuer may, by written notice to the Holders, suspend the Holders' use
of the Prospectus for a period not to exceed an aggregate of 30 days
in any three-month period (each such period, a "Suspension Period")
if:
(x) an event occurs and is continuing or fact exists as a
result of which the Shelf Registration Statement or the
Additional Shelf Registration Statement, as applicable, would, in
the Issuer's reasonable judgment, 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
(y) the Issuer reasonably determines in good faith that
the disclosure of such event at such time would have a material
adverse effect on the business of the Issuer (and its
subsidiaries, if any, taken as a whole);
provided, that the Suspension Periods shall not exceed an aggregate of
60 days in any 365-day period. The Effectiveness Period shall be
extended by the number of days beginning on the date the Issuer gives
the Holders notice of the Suspension Period to and including the date
on which the Holders receive copies of the supplemented or amended
Prospectus or the date on which the Holders are advised in writing by
the Issuer that the Prospectus may be used. Each Holder, by its
acceptance of a Registrable Security, agrees to hold in confidence any
communication by the Issuer relating to an event described in Section
4(b)(i)(x) and (y) or Section 4(b)(iii)(D).
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement or the
Additional Shelf Registration Statement, as applicable, as may be
necessary to keep the Shelf Registration Statement or the Additional
Shelf Registration Statement, as applicable, effective during the
Effectiveness Period; cause the Prospectus to be
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supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities
Act, and to comply fully with the applicable provisions of Rules 424
and 430A under the Securities Act in a timely manner, if required by
the Securities Act or as reasonably requested by the Initial
Purchasers or by the Trustee on behalf of the Holders of the
Registrable Securities covered by such Shelf Registration Statement or
Additional Shelf Registration Statement, as applicable, and comply
with the provisions of the Securities Act with respect to the
disposition of all securities covered by the Shelf Registration
Statement or the Additional Shelf Registration Statement, as
applicable, during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set
forth in the Shelf Registration Statement, the Additional Shelf
Registration Statement, as applicable, or supplement to the
Prospectus.
(iii) As promptly as practicable give notice to the Initial
Purchasers and the selling Holders, counsel for the selling Holders
and for the Initial Purchasers (or, if applicable, separate counsel
for the selling Holders), and any underwriters and, if requested by
such Persons, confirm such advice in writing:
(A) when the Shelf Registration Statement, the Additional
Shelf Registration Statement, Prospectus or any Prospectus
supplement or post-effective amendment has been filed, as
applicable, and, with respect to the Shelf Registration
Statement, the Additional Shelf Registration Statement or any
post-effective amendment thereto, when the same has become
effective,
(B) of any request by the Commission or any other federal
or state governmental authority for amendments to the Shelf
Registration Statement, the Additional Shelf Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, as applicable,
(C) of the issuance by the Commission or any other
federal or state authority of any stop order suspending the
effectiveness of the Shelf Registration Statement, or the
Additional Shelf Registration Statement as applicable, under the
Securities Act or of the suspension by any state securities
commission of the qualification of the Registrable Securities for
offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, or
(D) of the existence of any fact or the happening of any
event, during the Effectiveness Period, that makes any statement
of a material fact made in the Shelf Registration Statement, the
Additional Shelf Registration Statement, the Prospectus, any
amendment or supplement thereto, as applicable, or any document
incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Shelf Registration
Statement, or the Additional Shelf Registration, as
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applicable to make the statements therein not misleading or that
requires the making of any additions to or changes in the
Prospectus in order to make the statements in the Prospectus in
light of the circumstances under which they were made not
misleading (including, in any such case, as a result of the
non-availability of financial statements).
If at any time the Commission shall issue any stop order suspending
the effectiveness of the Shelf Registration Statement or the
Additional Shelf Registration Statement, as applicable, or any state
securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of
the Registrable Securities under state securities or Blue Sky laws, or
the Shelf Registration Statement or the Additional Shelf Registration
Statement, as applicable, ceases to be effective for any reason at any
time during the Effectiveness Period, the Issuer shall use its
reasonable best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time, and in any event shall within
thirty (30) days of such cessation of effectiveness amend the Shelf
Registration Statement or the Additional Shelf Registration Statement,
as applicable, in a manner reasonably expected by the Issuer to obtain
the withdrawal of the order suspending the effectiveness thereof, or
file an additional Shelf Registration Statement or Additional Shelf
Registration Statement, as applicable, covering all of the securities
that as of the date of such filing are Registrable Securities. If a
subsequent Shelf Registration Statement or Additional Shelf
Registration Statement, as applicable, is filed, the Issuer shall use
its reasonable best efforts to cause such Shelf Registration Statement
to become effective as promptly as is practicable after such filing
and to keep such Shelf Registration Statement or Additional Shelf
Registration Statement, as applicable, continuously effective until
the end of the Effectiveness Period.
(iv) Furnish to the Initial Purchasers and counsel for the
Initial Purchasers, one counsel for the selling Holders and each of
the underwriter(s), if any, before filing with the Commission, a copy
of the Shelf Registration Statement, a copy of the Additional Shelf
Registration Statement, as applicable, and copies of any Prospectus
included therein or any amendments or supplements to any of the Shelf
Registration Statement, the Additional Shelf Registration Statement or
Prospectus, as applicable, (other than documents incorporated by
reference after the initial filing of the Shelf Registration Statement
or the Additional Shelf Registration Statement, as applicable), which
documents will be subject to the review of such persons, counsel and
underwriter(s), if any, for a period of two Business Days, and the
Issuer will not file the Shelf Registration Statement, the Additional
Shelf Registration Statement or Prospectus or any amendment or
supplement to the Shelf Registration Statement, the Additional Shelf
Registration Statement or Prospectus, as applicable, (other than
documents incorporated by reference) to which such counsel or the
underwriter(s), if any, shall reasonably object within two Business
Days after the receipt thereof. Such counsel or underwriter, if any,
shall be deemed to have reasonably objected to such filing if the
Shelf Registration Statement, Additional Shelf Registration
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Statement, amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains a material misstatement or omission.
(v) Subject to the execution of a confidentiality agreement
reasonably acceptable to the Issuer, make available at reasonable
times for inspection by one or more representatives of the selling
Holders, designated in writing by a Majority of Holders whose
Registrable Securities are included in the Shelf Registration
Statement or the Additional Shelf Registration Statement, as
applicable, any underwriter, if any, participating in any distribution
pursuant to the Shelf Registration Statement or the Additional Shelf
Registration Statement, as applicable, and any attorney or accountant
retained by the Majority of Holders or any of the underwriter(s), all
financial and other records, pertinent corporate documents and
properties of the Issuer as shall be reasonably necessary to enable
them to exercise any applicable due diligence responsibilities, and
cause the Issuer's officers, directors, managers and employees to
supply all information reasonably requested by any such representative
or representatives of the selling Holders, underwriter, attorney or
accountant in connection with the Shelf Registration Statement or the
Additional Shelf Registration Statement applicable; provided, however,
that any information designated by the Issuer as confidential at the
time of delivery of such information shall be kept confidential by the
recipient thereof.
(vi) If requested by the Initial Purchasers or their counsel,
any selling Holders or the underwriter(s), if any, incorporate in the
Shelf Registration Statement, the Additional Shelf Registration
Statement or Prospectus, as applicable, pursuant to a supplement or
post-effective amendment if necessary, such information as such
Initial Purchasers, counsel, selling Holders or underwriter(s), if
any, may reasonably request to have included therein, including,
without limitation: (1) information relating to the "Plan of
Distribution" of the Registrable Securities, (2) information with
respect to the principal amount of Notes or number of shares of Common
Stock being sold, (3) the purchase price being paid therefor and (4)
any other terms of the offering of the Registrable Securities to be
sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as
reasonably practicable after the Issuer is notified of the matters to
be incorporated in such Prospectus supplement or post-effective
amendment.
(vii) As promptly as is reasonably practicable furnish to each
selling Holder and the Initial Purchasers and their counsel, and each
of the underwriter(s), if any, without charge, at least one copy of
the Shelf Registration Statement or the Additional Shelf Registration
Statement, as applicable, as first filed with the Commission, and of
each amendment thereto (and any documents incorporated by reference
therein or exhibits thereto (or exhibits incorporated in such exhibits
by reference) as such Person may request in writing).
(viii) Deliver to each selling Holder and the Initial Purchasers,
and their counsel, and each of the underwriters(s), if any, without
charge, as many copies of
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the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may
request; subject to any notice by the Issuer in accordance with this
Section 4(b) of the existence of any fact or event of the kind
described in Section 4(b)(iii)(D) or 4(b)(iii)(C), the Issuer hereby
consents to the use of the Prospectus and any amendment or supplement
thereto by each of the selling Holders and each of the underwriter(s),
if any, in connection with the offering and the sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto.
(ix) If an underwriting agreement is entered into and the
registration is an Underwritten Registration, the Issuer shall:
(A) upon request, furnish to each selling Holder and each
underwriter, if any, in such substance and scope as they may
reasonably request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon the date of
closing of any sale of Registrable Securities in an Underwritten
Registration:
(1) a certificate, dated the date of such closing,
signed by (y) the Chairman of the Board, the Chief
Executive Officer, the President or a Vice President and
(z) the Chief Financial Officer of the Issuer confirming,
as of the date thereof, such matters as such parties may
reasonably request;
(2) opinions, each dated the date of such closing,
of counsel to the Issuer covering such matters as are
customarily covered in legal opinions to underwriters in
connection with primary underwritten offerings of
securities; and
(3) customary comfort letters, dated the date of
such closing, from the Issuer's independent accountants
(and from any other accountants whose report is contained
or incorporated by reference in the Shelf Registration
Statement or the Additional Shelf Registration Statement,
as applicable), in the customary form and covering matters
of the type customarily covered in comfort letters to
underwriters in connection with primary underwritten
offerings of securities;
(B) set forth in full in the underwriting agreement, if
any, indemnification provisions and procedures which provide
rights no less protective than those set forth in Section 6
hereof with respect to all parties to be indemnified; and
(C) deliver such other documents and certificates as may
be reasonably requested by such parties to evidence compliance
with clause (A) above and with any customary conditions contained
in the
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underwriting agreement or other agreement entered into by the
selling Holders pursuant to this clause (ix).
(x) Before any public offering of Registrable Securities,
cooperate with the selling Holders, the underwriter(s), if any, and
their respective counsel in connection with the registration and
qualification of the Registrable Securities under the securities or
Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s), if any, may reasonably request and do any and all
other acts or things necessary or advisable to enable the disposition
in such jurisdictions of the Registrable Securities covered by the
Shelf Registration Statement or the Additional Shelf Registration
Statement, as applicable; provided, however, that the Issuer shall not
be required (A) to register or qualify as a foreign corporation or a
dealer of securities where it is not now so qualified or to take any
action that would subject it to the service of process in any
jurisdiction where it is not now so subject or (B) to subject itself
to taxation in any such jurisdiction if it is not now so subject.
(xi) Cooperate with the selling Holders and the underwriter(s),
if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not
bearing any restrictive legends (unless required by applicable
securities laws); and enable such Registrable Securities to be in such
denominations and registered in such names as the Holders or the
underwriter(s), if any, may reasonably request at least three Business
Days before any sale of Registrable Securities.
(xii) Use its reasonable best efforts to cause the Registrable
Securities covered by the Shelf Registration Statement or the
Additional Shelf Registration Statement, as applicable, to be
registered with or approved by such other U.S. governmental agencies
or authorities as may be necessary to enable the selling Holders or
the underwriter(s), if any, to consummate the disposition of such
Registrable Securities, subject to the proviso in clause (x) above
(other than laws generally not applicable to all Holders of
Registrable Securities wishing to sell Registrable Securities pursuant
to the Shelf Registration Statement or the Additional Shelf
Registration Statement, as applicable, and the related Prospectus).
(xiii) Subject to Section 4(b)(i) hereof, if any fact or event
contemplated by Section 4(b)(iii)(D) hereof shall exist or have
occurred, use its reasonable best efforts to prepare a supplement or
post-effective amendment to the Shelf Registration Statement, the
Additional Shelf Registration Statement or related Prospectus or any
document incorporated therein by reference, as applicable, or file any
other required document so that, as thereafter delivered to the
purchasers of Registrable Securities, the Prospectus will not contain
an untrue statement of a material fact or omit to state any material
fact required to be stated in the Prospectus or necessary to make the
statements in the Prospectus, in light of the circumstances under
which they were made, not misleading (including, in any such case, as
a result of the non-availability of financial statements).
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(xiv) Provide CUSIP numbers for all Registrable Securities not
later than the effective date of the Shelf Registration Statement or
the Additional Shelf Registration Statement, as applicable, and
provide the Trustee under the Indenture with certificates for the
Notes that are in a form eligible for deposit with The Depository
Trust Company.
(xv) Cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence
investigation by any underwriter that is required to be retained in
accordance with the rules and regulations of the NASD.
(xvi) Otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission and all
reporting requirements under the rules and regulations of the Exchange
Act and make generally available to its security holders earning
statements (which need not be audited) satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 (or similar rule
promulgated under the Securities Act) thereunder no later than 45 days
after the end of any 12 month period (or 90 days after the end of any
12-month period if such period is a fiscal year) commencing on the
first day of the first fiscal quarter of the Issuer commencing after
the effective date of a Shelf Registration Statement or Additional
Shelf Registration Statement, as applicable, which statements shall
cover said 12-month periods.
(xvii) Cause the Indenture to be qualified under the TIA not
later than the effective date of the Shelf Registration Statement,
and, in connection therewith, cooperate with the Trustee and the
holders of Notes to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with the
terms of the TIA; and execute and use its reasonable best efforts to
cause the Trustee thereunder to execute all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to
be so qualified in a timely manner.
(xviii) Cause all Registrable Securities covered by the Shelf
Registration Statement or the Additional Shelf Registration Statement,
as applicable, to be listed or quoted, as the case may be, on each
securities exchange or automated quotation system on which securities
issued by the Issuer of the same series are then listed or quoted.
(xix) Provide promptly to each Holder upon written request each
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act after the effective date
of the Shelf Registration Statement or the Additional Shelf
Registration Statement, as applicable, unless such documents are
available from XXXXX.
(xx) If requested by the underwriters in an underwritten
offering, make appropriate officers of the Issuer reasonably available
to the underwriters for meetings with prospective purchasers of the
Registrable Securities and prepare
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and present to potential investors customary "road show" material in a
manner consistent with other new issuances of other securities similar
to the Registrable Securities.
(xxi) Enter into such customary agreements and take all such
other necessary actions in connection therewith (including those
requested by the holders of a majority of the Registrable Securities
being sold) in order to expedite or facilitate disposition of such
Registrable Securities.
(xxii) Upon the filing of the Shelf Registration Statement or the
Additional Shelf Registration Statement, as applicable, and the
effectiveness of the Shelf Registration Statement or the Additional
Shelf Registration Statement, as applicable, announce the same by
issuing a news release to Reuters Economic Services and Bloomberg
Business News.
(c) Each Holder agrees by acquisition of a Registrable Security that,
upon receipt of any notice from the Issuer in accordance with Section 4(b)
of the existence of any fact of the kind described in Section 4(b)(iii)(D)
or 4(b)(iii)(C) hereof, such Holder will, and will use its reasonable best
efforts to cause any underwriter(s) in an Underwritten Offering to,
forthwith discontinue disposition of Registrable Securities pursuant to the
Shelf Registration Statement or the Additional Shelf Registration
Statement, as applicable, until:
(i) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 4(b)(xiii) hereof; or
(ii) such Holder is advised in writing (the "Advice") by the
Issuer that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus.
If so directed by the Issuer, each Holder will deliver to the Issuer (at
the Issuer's expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable
Securities that was current at the time of receipt of such notice of
suspension.
(d) The Issuer is required to send a questionnaire in the form
attached hereto as Annex B to each Holder of Registrable Securities at
least 30 Business Days before the Shelf Registration Statement or the
Additional Shelf Registration Statement, as applicable, is declared
effective. Each Holder who intends to be named as a selling Holder in the
Shelf Registration Statement or the Additional Shelf Registration
Statement, as applicable, shall furnish to the Issuer in writing, within 30
Business Days after receipt of a request therefor as set forth in a
questionnaire in the form attached hereto as Annex B, such information
regarding such Holder and the proposed distribution by such Holder of its
Registrable Securities as the Issuer may reasonably request for use in
connection with the Shelf Registration Statement, the Additional Shelf
Registration Statement or Prospectus or preliminary Prospectus included
therein, as applicable.
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Holders that do not complete the questionnaire and deliver it to the Issuer
shall not be named as selling securityholders in the Prospectus or
preliminary Prospectus included in the Shelf Registration Statement or the
Additional Shelf Registration Statement, as applicable, and therefore shall
not be permitted to sell any Registrable Securities pursuant to the Shelf
Registration Statement or the Additional Shelf Registration Statement, as
applicable, so long as the Issuer has requested, in accordance with this
Agreement, such information from such Holder and such Holder has had
adequate time to respond to the Issuer's request. Each Holder who intends
to be named as a selling Holder in the Shelf Registration Statement or the
Additional Shelf Registration Statement, as applicable, shall promptly
furnish to the Issuer in writing all information required to be disclosed
in order to make information previously furnished to the Issuer by such
Holder not materially misleading and such other information as the Issuer
may from time to time reasonably request in writing.
(e) Upon the effectiveness of the Shelf Registration Statement or the
Additional Shelf Registration Statement, as applicable, each Holder shall
notify the Issuer at least three Business Days prior to any intended
distribution of Registrable Securities pursuant to the Shelf Registration
Statement or the Additional Shelf Registration Statement, as applicable, (a
"Sale Notice"), which notice shall be effective for five Business Days.
Each Holder of this Security, by accepting the same, agrees to hold any
communication by the Issuer in response to a Sale Notice in confidence.
(f) Notwithstanding anything in this Agreement to the contrary, each
party to this Agreement (and any employee, representative or other agent of
such party) may disclose to any and all persons, without limitation of any
kind, the U.S. federal income tax treatment and tax structure of the
transactions contemplated by this offering memorandum and all materials of
any kind (including opinions or other tax analyses) that are provided to it
relating to such tax treatment and tax structure. However, any such
information relating to the U.S. federal income tax treatment or tax
structure is required to be kept confidential to the extent necessary to
comply with any applicable federal or state securities laws.
5. Registration Expenses.
---------------------
(a) All expenses incident to the Issuer's performance of or
compliance with this Agreement shall be borne by the Issuer regardless of
whether a Shelf Registration Statement or an Additional Shelf Registration
Statement, as applicable, becomes effective, including, without limitation:
(i) all registration and filing fees and expenses (including
without limitation fees and expenses with respect to filings required
to be made with the NASD);
(ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws (including without
limitation reasonable fees and disbursements of counsel for the
Holders in connection with blue sky qualifications of the Registrable
Securities);
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(iii) all expenses of printing (including printing of
Prospectuses and certificates for the Common Stock to be issued upon
conversion of the Notes), messenger and delivery services, and
telephone;
(iv) all reasonable fees and disbursements of counsel to the
Issuer and, subject to Section 5(b) below, the Holders of Registrable
Securities;
(v) fees and disbursements of the Trustee and its counsel and
of the registrar and transfer agent for the Common Stock;
(vi) all application and filing fees in connection with listing
(or authorizing for quotation) the Common Stock on a national
securities exchange or automated quotation system pursuant to the
requirements hereof; and
(vii) all fees and disbursements of independent certified public
accountants of the Issuer (including the expenses of any special audit
and comfort letters required by or incident to such performance).
The Issuer shall bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees
performing legal, accounting or other duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Issuer.
(b) In connection with the Shelf Registration Statement or the
Additional Shelf Registration Statement, as applicable, required by this
Agreement, the Issuer shall reimburse the Initial Purchasers and the
Holders of Registrable Securities being registered pursuant to the Shelf
Registration Statement or the Additional Shelf Registration Statement, as
applicable, for the reasonable fees and disbursements of not more than one
counsel, which shall be Manatt, Xxxxxx & Xxxxxxxx, LLP or such other
counsel chosen by a Majority of Holders for whose benefit the Shelf
Registration Statement or the Additional Shelf Registration Statement, as
applicable, is being prepared and is reasonably acceptable to the Issuer.
The Issuer shall not be required to pay any underwriter discount,
commission or similar fees related to the sale of the Securities.
6. Indemnification and Contribution.
--------------------------------
(a) The Issuer shall indemnify and hold harmless the Initial
Purchasers, each Holder and each person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act and each of their respective directors, officers,
employees, representatives and agents (each, an "Indemnified Party"), from
and against any loss, claim, damage, expense or liability, joint or
several, or any action in respect thereof (including, but not limited to,
any loss, claim, damage, expense, liability or action relating to resales
of the Registrable Securities), to which such Indemnified Party may become
subject, under the Securities Act or otherwise, insofar as any such loss,
claim, damage, expense, liability or action arises out of, or is based
upon:
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(i) any untrue statement or alleged untrue statement of a
material fact contained in (A) the Shelf Registration Statement, the
Additional Shelf Registration Statement or Prospectus or any amendment
or supplement thereto or any preliminary prospectus, as applicable, or
(B) any blue sky application or other document or any amendment or
supplement thereto prepared or executed by the Issuer (or based upon
written information furnished by or on behalf of the Issuer expressly
for use in such blue sky application or other document or amendment on
supplement) filed in any jurisdiction specifically for the purpose of
qualifying any or all of the Registrable Securities under the
securities law of any state or other jurisdiction (such application or
document being hereinafter called a "Blue Sky Application"); or
(ii) the omission or alleged omission to state in the Shelf
Registration Statement, the Additional Shelf Registration Statement,
as applicable, or amendments thereto any material fact required to be
stated therein or necessary to make the statements therein not
misleading, or the omission or alleged omission to state in the
Prospectus or any amendment or supplement thereto or any preliminary
prospectus any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
and shall reimburse each Indemnified Party promptly upon demand for any
legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Issuer shall not be liable to an
Indemnified Party in any such case to the extent that any such loss, claim,
damage, expense, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged
omission made in the Shelf Registration Statement, the Additional Shelf
Registration Statement or Prospectus or amendment or supplement thereto or
Blue Sky Application, as applicable, in reliance upon and in conformity
with written information furnished to the Issuer by or on behalf of such
Indemnified Party specifically for use therein; provided, further, that
this indemnity shall not inure to the benefit of any Indemnified Party any
director, officer, employee, representative and agent of that Indemnified
Party if such loss, claim, damage, expense, liability or action arises from
the sale of Registrable Securities by such Indemnified Party during a
Suspension Period or during the period when a stop order is in effect,
provided that such Indemnified Party shall have received notice from the
Company of such Suspension Period or stop order in accordance with Section
4(b) prior to such sale; provided, further, that as to any preliminary
Prospectus, this indemnity agreement shall not inure to the benefit of any
Indemnified Party or any officer, employee, representative, agent, director
or controlling person of that Indemnified Party on account of any loss,
claim, damage, expense, liability or action arising from the sale of the
Registrable Securities sold pursuant to the Shelf Registration Statement or
the Additional Shelf Registration Statement, as applicable, to any person
by such Indemnified Party if (i) that Indemnified Party failed to send or
give a copy of the Prospectus, as the same may be amended or supplemented,
to that person within the time required by the Securities Act and (ii) the
untrue statement or alleged untrue statement of a material fact or omission
or
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alleged omission to state a material fact in such preliminary Prospectus
was corrected in the Prospectus or a supplement or amendment thereto, as
the case may be, unless in each case, such failure resulted from
noncompliance by the Issuer with Section 4. The foregoing indemnity
agreement is in addition to any liability that the Issuer may otherwise
have to any Indemnified Party.
(b) Each Holder severally and not jointly, shall indemnify and hold
harmless the Initial Purchasers, the Issuer and each person, if any, who
controls any of such parties within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and each of their
respective directors, officers, employees, representatives and agents, from
and against any loss, claim, damage, expense or liability, joint or
several, or any action in respect thereof, to which the Issuer or any such
officer, employee, representative, agent or controlling person may become
subject, insofar as any such loss, claim, damage, expense, liability or
action arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in the Shelf Registration Statement, the
Additional Shelf Registration Statement or Prospectus or any amendment
or supplement thereto or any Blue Sky Application, as applicable; or
(ii) the omission or the alleged omission to state in the Shelf
Registration Statement or the Additional Shelf Registration Statement,
as applicable, any material fact required to be stated therein or
necessary to make the statements therein not misleading, or the
omission or alleged omission to state in the Prospectus any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading,
but in each case 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 Issuer by or on
behalf of such Holder (or its related Indemnified Party) specifically for
use therein, and shall reimburse the Issuer and any such director, officer,
employee, representative, agent or controlling person promptly upon demand
for any legal or other expenses reasonably incurred by the Issuer or any
such officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability that any
Holder may otherwise have to the Issuer and any such director, officer,
employee or controlling person. In no event shall the liability of any
selling Holder of Registrable Securities hereunder be greater in amount
than the dollar amount of the proceeds received by such Holder upon the
sale of the Registrable Securities pursuant to the Shelf Registration
Statement or the Additional Shelf Registration Statement, as applicable,
giving rise to such indemnification obligation.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6,
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notify the indemnifying party in writing of the claim or the commencement
of that action; provided, however, that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have
under this Section 6 except to the extent it has been materially prejudiced
by such failure and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have
to an indemnified party otherwise than under this Section 6. If any such
claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall
not be liable to the indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the indemnified party shall have the
right to employ counsel to represent jointly the indemnified party and its
respective directors, employees, officers and controlling persons who may
be subject to liability arising out of any claim in respect of which
indemnity may be sought by the indemnified party against the indemnifying
party under this Section 6 if (1) employment of such counsel has been
authorized in writing by the indemnifying party, or (2) such indemnifying
party shall not have employed counsel to have charge of the defense of such
proceeding within 30 days of the receipt of notice thereof, or (3) such
indemnified party shall have reasonably concluded that the representation
of such indemnified party and those directors, employees, officers and
controlling persons by the same counsel representing the indemnifying party
would be inappropriate under applicable standards of professional conduct
due to actual or potential differing interests between them or where there
may be one or more defenses available to them that are different from,
additional to or in conflict with those available to the indemnifying
party, and in any such event ((1), (2) or (3)) the fees and expenses of
such separate counsel shall be paid by the indemnifying party as incurred.
It is understood that the indemnifying party shall not be liable for the
fees and expenses of more than one separate firm (in addition to local
counsel in each jurisdiction) for all indemnified parties in connection
with any proceeding or related proceedings. No indemnifying party shall:
(i) without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld) effect any
settlement of any pending or threatened action in respect of which
indemnification or contribution may be sought hereunder (whether or
not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent
includes an unconditional release of such indemnified party from all
liability arising out of such claim, action, suit or proceeding and
does not include a statement as to or an admission of fault,
culpability or failure to act by or on behalf of any indemnified
party, or
(ii) be liable for any settlement of any such action effected
without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such
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action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss of liability by reason
of such settlement or judgment in accordance with this Section 6.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages, expenses or liabilities (or actions in respect
thereof) referred to in subsection (a) or (b) above (i) in such proportion
as is appropriate to reflect the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party on
the other from the registration of the Registrable Securities pursuant to
the Shelf Registration, or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the indemnifying party or parties
on the one hand and the indemnified party on the other in connection with
the statements or omissions that 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 the parties shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Issuer on the one hand or such Holder or such other indemnified party, as
the case may be, on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). The Issuer and the Holders agree that it would not be just
and equitable if contribution pursuant to this Section 6(d) were determined
by pro rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to herein.
Notwithstanding any other provision of this Section 6(d), the Holders of
the Registrable Securities shall not be required to contribute any amount
in excess of the amount by which the gross proceeds received by such
Holders from the sale of the Registrable Securities pursuant to the Shelf
Registration Statement or the Additional Shelf Registration Statement, as
applicable, exceeds the amount of damages which such Holders have 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. For purposes of this paragraph (d),
each person, if any, who controls such indemnified party within the meaning
of the Securities Act or the Exchange Act shall have the same rights to
contribution as such indemnified party and each person, if any, who
controls the Issuer within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the Issuer. The
Holders' respective obligations to contribute pursuant to this Section 6
are several in proportion to the respective amount of Registrable
Securities they have sold pursuant to a Registration Statement and not
joint. The remedies provided for in this Section 6 are not exclusive
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and shall not limit any rights or remedies which may otherwise be available
to any indemnified party at law or in equity.
(e) If at any time an indemnified party shall have requested an
indemnifying party to reimburse such indemnified party for fees and
expenses of counsel as contemplated herein, then such indemnifying party
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into
more than 30 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement, and (iii) such indemnified party shall have given such
indemnifying party at least 30 days' prior notice of its intention to
settle.
(f) The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Initial Purchaser, any Holder or any person controlling any
Initial Purchaser or any Holder, or by or on behalf of the Issuer, its
officers or directors or any person controlling the Issuer, and (iii) any
sale of Registrable Securities pursuant to the Shelf Registration Statement
or the Additional Shelf Registration Statement, as applicable.
7. Information Requirements.
------------------------
The Issuer covenants that, if at any time before the end of the
Effectiveness Period it is not subject to the reporting requirements of the
Exchange Act, it will cooperate with any Holder of Registrable Securities and
take such further action as any Holder of Registrable Securities may reasonably
request in writing (including, without limitation, making such representations
as any such Holder may reasonably request), all to the extent required from time
to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemptions
provided by Rule 144 and Rule 144A under the Securities Act and customarily
taken in connection with sales pursuant to such exemptions.
In addition, in the event the Issuer is not subject to Section 13 or 15(d)
of the Exchange Act, the Issuer hereby agrees with each Holder, for so long as
any Registrable Securities remain outstanding, to make available to any Holder
or beneficial owner of Registrable Securities in connection with any sale
thereof and any prospective purchaser of such Registrable Securities from such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Securities Act in order to permit resales of such Registrable Securities
pursuant to Rule 144A.
The Issuer shall file the reports required to be filed by it under the
Exchange Act and shall comply with all other requirements set forth in the
instructions to Form S-1 or Form S-3, as the case may be, in order to allow the
Issuer to be eligible to file registration statements on Form S-1 or Form S-3.
8. Underwritten Registrations.
--------------------------
(a) The Underwriting Majority may sell its Registrable Securities in
an Underwritten Offering pursuant to the Shelf Registration Statement or
the Additional
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Shelf Registration Statement, as applicable, only with the Issuer's
consent, which consent may not be unreasonably withheld, delayed or
conditioned.
(b) Participation of Holders. No Holder may participate in any
Underwritten Registration hereunder unless such Holder:
(i) agrees to sell such Holder's Registrable Securities on the
basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and
(ii) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up
letters and other documents reasonably required under the terms of
such underwriting arrangements.
(c) Selection of Underwriters. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by a Majority of Holders whose
Registrable Securities are included in such Underwriting Offering;
provided, that such investment bankers and managers must be reasonably
satisfactory to the Issuer.
9. Miscellaneous.
-------------
(a) Remedies. The Issuer acknowledges and agrees that any failure by
the Issuer to comply with its obligations under Section 2 hereof may result
in material irreparable injury to the Initial Purchasers or the Holders for
which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any
such failure, the Initial Purchasers or any Holder may obtain such relief
as may be required to specifically enforce the Issuer's obligations under
Section 2 hereof. The Issuer further agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Issuer is not a party to, as of
the date hereof, and will not enter into, on or after the date of this
Agreement, any agreement with respect to its securities that conflicts with
the rights granted to the Holders in this Agreement. In addition, the
Issuer shall not grant to any of its security holders (other than the
holders of Registrable Securities in such capacity) the right to include
any of its securities in the Shelf Registration Statement or the Additional
Shelf Registration Statement, as applicable, provided for in this Agreement
other than the Registrable Securities. The Issuer has not previously
entered into any agreement (which has not expired or been terminated)
granting any registration rights with respect to its securities to any
Person, which rights conflict with the provisions hereof.
(c) Adjustments Affecting Registrable Securities. The Issuer shall
not, directly or indirectly, take any action with respect to the
Registrable Securities as a class that would adversely affect the ability
of the Holders of Registrable Securities to include such Registrable
Securities in a registration undertaken pursuant to this Agreement.
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(d) Amendments and Waivers. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Issuer has obtained the
written consent of a Majority of Holders; provided, however, that no
amendment, modification, supplement, waiver or consent to or departure from
the provisions of Section 6 that materially and adversely affects a Holder
hereof shall be effective as against any such Holder of Registrable
Securities unless consented to in writing by such Holder; provided,
further, that with respect to any matter that directly or indirectly
adversely affects the rights of any Initial Purchaser hereunder, the Issuer
shall obtain the written consent of each such Initial Purchaser against
which such amendment, modification, supplement, waiver or consent is to be
effective.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telex,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the registrar under the Indenture or the transfer agent of the Common
Stock, as the case may be; and
(ii) if to the Issuer:
New Century Financial Corporation
00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxxxxxx, General Counsel
With a copy to:
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
(iii) if to the Initial Purchasers:
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Equity Capital Markets
With a copy to:
X-00
Xxxxxxxxx Xxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxxx, Xxxxxx & Xxxxxxxx, LLP
00000 Xxxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx Xxxx
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt acknowledged, if
telecopied; and on the next Business Day, if timely delivered to an air
courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
A document or notice shall be deemed to have been furnished to the Holders
of the Registrable Securities if it is provided to the registered holders
of the Registrable Securities at the address set forth in clause (i) above.
(f) Successors and Assigns. Any person who purchases any Registrable
Securities from the Initial Purchasers or any Holder shall be deemed, for
purposes of this Agreement, to be an assignee of the Initial Purchasers or
such Holder, as the case may be. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of
the parties, including without limitation and without the need for an
express assignment, subsequent Holders of Registrable Securities; provided,
however, that (i) nothing contained herein shall be deemed to permit any
assignment, transfer or other disposition of Registrable Securities in
violation of the terms of the Purchase Agreement or the Indenture and (ii)
this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign acquired Registrable Securities from such Holder. If any transferee
of any Holder shall acquire Registrable Securities, in any manner, whether
by operation of law or otherwise, such Registrable Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions
of this Agreement and such Person shall be entitled to receive the benefits
hereof. The Initial Purchasers (in their capacity as Initial Purchasers)
shall have no liability or obligation to the Issuer with respect to any
failure by a Holder to comply with, or breach by any Holder of, any of the
obligations of such Holder under this Agreement.
(g) Purchases and Sales of Notes. The Issuer shall not, and shall use
its reasonable best efforts to cause its affiliates (as defined in Rule 405
under the Securities Act) within its Control not to, resell or otherwise
transfer any Notes acquired by the Company or such affiliates, except
pursuant to an effective registration statement under the Securities Act or
an exemption therefrom.
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(h) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Issuer and the
Initial Purchasers, and such Initial Purchasers shall have the right to
enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
(i) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(j) Securities Held by the Issuer or Their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Issuer
or its affiliates (as such term is defined in Rule 405 under the Securities
Act) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
(k) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(l) Governing Law. This agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
(m) Consent to Jurisdiction. Each party irrevocably agrees that any
legal suit, action or proceeding arising out of or based upon this
Agreement or the transactions contemplated hereby ("Related Proceedings")
may be instituted in the federal courts of the United States of America
located in the City of New York or the courts of the State of New York in
each case located in the Borough of Manhattan in the City of New York
(collectively, the "Specified Courts"), and irrevocably submits to the
exclusive jurisdiction (except for proceedings instituted in regard to the
enforcement of a judgment of any such court (a "Related Judgment"), as to
which such Jurisdiction is non-exclusive) of such courts in any such suit,
action or proceeding. The parties further agree that service of any
process, summons, notice or document by mail to such party's address set
forth above shall be effective service of process for any lawsuit, action
or other proceeding brought in any such court. The parties hereby
irrevocably and unconditionally waive any objection to the laying of venue
of any lawsuit, action or other proceeding in the Specified Courts, and
hereby further irrevocably and unconditionally waive and agree not to plead
or claim in any such court that any such lawsuit, action or other
proceeding brought in any such court has been brought in an inconvenient
forum.
(n) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby, and the parties
hereto shall use its reasonable best efforts to find and employ an
alternative means to achieve the same or substantially the same result as
that contemplated by such
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term, provision, covenant or restriction, it being intended that all of the
rights and privileges of the parties shall be enforceable to the fullest
extent permitted by law.
(o) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or
referred to herein with respect to the registration rights granted by the
Issuer with respect to the Registrable Securities. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
[Signature page to follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Very truly yours,
NEW CENTURY FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxxx
Vice Chairman and Chief Financial
Officer
The foregoing Registration Rights Agreement is hereby confirmed and
accepted as of the date first written above.
BEAR, XXXXXXX & CO. INC.,
on behalf of the Initial Purchasers
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx
Senior Managing Director
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