Registration Rights Agreement
Dated As of March 7, 2000
among
CK Witco Corporation
and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
ABN AMRO Incorporated,
Banc of America Securities LLC,
Chase Securities Inc.,
Deutsche Bank Securities Inc.,
Xxxxxxx, Xxxxx & Co.,
and
Xxxxxxx Xxxxx Barney Inc.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made
and entered into this 7th day of March, 2000, among CK Witco
Corporation, a Delaware corporation (the "Company"), and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, ABN AMRO
Incorporated, Banc of America Securities LLC, Chase Securities
Inc., Deutsche Bank Securities Inc., Xxxxxxx, Xxxxx & Co., and
Xxxxxxx Xxxxx Barney Inc. (collectively, the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agreement,
dated March 7, 2000, among the Company and the Initial Purchasers
(the "Purchase Agreement"), which provides for the sale by the
Company to the Initial Purchasers of an aggregate of $600,000,000
principal amount of the Company's 8.50% Senior Notes due 2005
(the "Securities"). In order to induce the Initial Purchasers to
enter into the Purchase Agreement, the Company has agreed to
provide to the Initial Purchasers and their direct and indirect
transferees the registration rights as set forth in this
Agreement. The execution of this Agreement is a condition to the
closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree
as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as
amended from time to time.
"1934 Act" shall mean the Securities Exchange Act of
l934, as amended from time to time.
"Closing Date" shall mean the Closing Time as defined
in the Purchase Agreement.
"Company" shall have the meaning set forth in the
preamble and shall also include the Company's successors.
"Depositary" shall mean The Depository Trust Company,
or any other depositary appointed by the Company, provided,
however, that such depositary must have an address in the Borough
of Manhattan, in the City of New York.
"Exchange Offer" shall mean the exchange offer by the
Company of Exchange Securities for Registrable Securities
pursuant to Section 2.1 hereof.
"Exchange Offer Registration" shall mean a registration
under the 1933 Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an
exchange offer registration statement on Form S-4 (or, if
applicable, on another appropriate form), and all amendments and
supplements to such registration statement, including the
Prospectus contained therein, all exhibits thereto and all
documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in
Section 2.1 hereof.
"Exchange Securities" shall mean the 8.50% Senior Notes
due 2005 issued by the Company under the Indenture containing
terms identical to the Securities in all material respects
(except for references to certain interest rate provisions,
restrictions on transfers and restrictive legends), to be offered
to Holders of Securities in exchange for Registrable Securities
pursuant to the Exchange Offer.
"Holder" shall mean an Initial Purchaser, for so long
as it owns any Registrable Securities, and each of its
successors, assigns and direct and indirect transferees who
become registered owners of Registrable Securities under the
Indenture and each Participating Broker-Dealer that holds
Exchange Securities for so long as such Participating Broker-
Dealer is required to deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of
such Exchange Securities.
"Indenture" shall mean the Indenture relating to the
Securities, dated as of March 1, 2000, between the Company and
Citibank, N.A., as trustee, as the same may be amended,
supplemented, waived or otherwise modified from time to time in
accordance with the terms thereof.
"Initial Purchaser" or "Initial Purchasers" shall have
the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority
of the aggregate principal amount of Outstanding (as defined in
the Indenture) Registrable Securities; provided that whenever
the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable
Securities held by the Company and other obligors on the
Securities or any Affiliate (as defined in the Indenture) of the
Company shall be disregarded in determining whether such consent
or approval was given by the Holders of such required percentage
amount.
"Participating Broker-Dealer" shall mean any of Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, ABN AMRO
Incorporated, Banc of America Securities LLC, Chase Securities
Inc., Deutsche Bank Securities Inc., Xxxxxxx, Xxxxx & Co., and
Xxxxxxx Xxxxx Barney Inc. and any other broker-dealer which makes
a market in the Securities and exchanges Registrable Securities
in the Exchange Offer for Exchange Securities.
"Person" shall mean an individual, partnership (general
or limited), corporation, limited liability company, trust or
unincorporated organization, or a government or agency or
political subdivision thereof.
"Private Exchange" shall have the meaning set forth in
Section 2.1 hereof.
"Private Exchange Securities" shall have the meaning
set forth in Section 2.1 hereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and
any such prospectus as amended or supplemented by any prospectus
supplement, including any such prospectus supplement with respect
to the terms of the offering of any portion of the Registrable
Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-
effective amendments, and in each case including all material
incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth
in the preamble.
"Registrable Securities" shall mean the Securities and,
if issued, the Private Exchange Securities; provided, however,
that Securities and, if issued, the Private Exchange Securities,
shall cease to be Registrable Securities when (i) a Registration
Statement with respect to such Securities shall have been
declared effective under the 1933 Act and such Securities shall
have been disposed of pursuant to such Registration Statement,
(ii) such Securities have been sold to the public pursuant to
Rule l44 (or any similar provision then in force, but not
Rule 144A) under the 1933 Act, (iii) such Securities shall have
ceased to be outstanding or (iv) the Exchange Offer is
consummated (except in the case of Securities purchased from the
Company and continued to be held by the Initial Purchasers).
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Company with this
Agreement, including without limitation: (i) all SEC, stock
exchange or National Association of Securities Dealers, Inc. (the
"NASD") registration and filing fees, including, if applicable,
the fees and expenses of any "qualified independent underwriter"
(and its counsel) that is required to be retained by any holder
of Registrable Securities in accordance with the rules and
regulations of the NASD, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws
and compliance with the rules of the NASD (including reasonable
fees and disbursements of counsel for any underwriters or Holders
in connection with blue sky qualification of any of the Exchange
Securities or Registrable Securities and any filings with the
NASD), (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to the
performance of and compliance with this Agreement, (iv) all fees
and expenses incurred in connection with the listing, if any, of
any of the Registrable Securities on any securities exchange or
exchanges, (v) all rating agency fees, (vi) the fees and
disbursements of counsel for the Company and of the independent
public accountants of the Company, including the expenses of any
special audits or "cold comfort" letters required by or incident
to such performance and compliance, (vii) the fees and expenses
of the Trustee, and any escrow agent or custodian, (viii) the
reasonable fees and expenses of the Initial Purchasers and
Holders of Registrable Securities in connection with the Exchange
Offer, including the reasonable fees and expenses of one firm of
attorneys (in addition to any local counsel) to the Initial
Purchasers and Holders of Registrable Securities in connection
therewith, and (ix) any fees and disbursements of the
underwriters customarily required to be paid by issuers or
sellers of securities and the fees and expenses of any special
experts retained by the Company in connection with any
Registration Statement, but excluding underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration
statement of the Company which covers any of the Exchange
Securities or Registrable Securities pursuant to the provisions
of this Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in
each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference
therein.
"Representative" shall mean Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated.
"SEC" shall mean the Securities and Exchange Commission
or any successor agency or government body performing the
functions currently performed by the United States Securities and
Exchange Commission.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the provisions
of Section 2.2 of this Agreement which covers all of the
Registrable Securities or all of the Private Exchange Securities
on an appropriate form under Rule 415 under the 1933 Act, or any
similar rule that may be adopted by the SEC, and all amendments
and supplements to such registration statement, including post-
effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
2. Registration Under the 0000 Xxx.
2.1 Exchange Offer. The Company shall, for the benefit
of the Holders, at the Company's cost, use its reasonable best
efforts to (A) prepare and, as soon as practicable but not later
than 75 days following the Closing Date, file with the SEC an
Exchange Offer Registration Statement on an appropriate form
under the 1933 Act with respect to a proposed Exchange Offer and
the issuance and delivery to the Holders, in exchange for the
Registrable Securities (other than Private Exchange Securities),
of a like principal amount of Exchange Securities, (B) cause the
Exchange Offer Registration Statement to be declared effective
under the 1933 Act within 150 days of the Closing Date, (C) keep
the Exchange Offer Registration Statement effective until the
closing of the Exchange Offer and (D) use its best efforts to
cause the Exchange Offer to be consummated not later than 180
days following the Closing Date. Upon the effectiveness of the
Exchange Offer Registration Statement, the Company shall use its
reasonable best efforts to promptly commence the Exchange Offer,
it being the objective of such Exchange Offer to enable each
Holder eligible and electing to exchange Registrable Securities
for Exchange Securities (assuming that such Holder (a) is not an
affiliate of the Company within the meaning of Rule 405 under the
1933 Act, (b) is not a broker-dealer tendering Registrable
Securities acquired directly from the Company for its own
account, (c) acquired the Exchange Securities in the ordinary
course of such Holder's business and (d) has no arrangements or
understandings with any Person to participate in the Exchange
Offer for the purpose of distributing the Exchange Securities) to
transfer such Exchange Securities from and after their receipt
without any limitations or restrictions under the 1933 Act or any
limitations or restrictions under state securities or blue sky
laws.
In connection with the Exchange Offer, the Company shall:
(a) in connection with the commencement, mail as
promptly as practicable to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related
documents;
(b) once commenced, keep the Exchange Offer open
for acceptance for a period of not less than 30 calendar days
after the date notice thereof is mailed to the Holders (or longer
if required by applicable law) (such period referred to herein as
the "Exchange Period");
(c) utilize the services of the Depositary for the
Exchange Offer;
(d) permit Holders to withdraw tendered Registrable
Securities at any time prior to 5:00 p.m. (Eastern Time), on the
last business day of the Exchange Period, through customary
procedures therefor;
(e) notify each Holder that any Registrable
Security not tendered will remain outstanding and continue to
accrue interest, but will not retain any rights under this
Agreement (except in the case of the Initial Purchasers and
Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all respects with all
applicable laws relating to the Exchange Offer.
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Securities acquired by them and having the
status of an unsold allotment in the initial distribution, the
Company upon the request of any Initial Purchaser shall,
simultaneously with the delivery of the Exchange Securities in
the Exchange Offer, issue and deliver to such Initial Purchaser
in exchange (the "Private Exchange") for the Securities held by
such Initial Purchaser, a like principal amount of debt
securities of the Company on a senior basis, that are identical
(except that such securities shall bear appropriate transfer
restrictions) to the Exchange Securities (the "Private Exchange
Securities").
The Exchange Securities and the Private Exchange Securities
shall be issued under (i) the Indenture or (ii) an indenture
identical in all material respects to the Indenture and which, in
either case, has been qualified under the Trust Indenture Act of
1939, as amended (the "TIA"), or is exempt from such
qualification and shall provide that the Exchange Securities
shall not be subject to the transfer restrictions set forth in
the Indenture but that the Private Exchange Securities shall be
subject to such transfer restrictions. The Indenture or such
indenture shall provide that the Exchange Securities, the Private
Exchange Securities and the Securities shall vote and consent
together on all matters as one class and that none of the
Exchange Securities, the Private Exchange Securities or the
Securities will have the right to vote or consent as a separate
class on any matter. The Private Exchange Securities shall be of
the same series as and the Company shall use commercially
reasonable efforts to have the Private Exchange Securities bear
the same CUSIP number as the Exchange Securities. The Company
shall not have any liability under this Agreement solely as a
result of such Private Exchange Securities not bearing the same
CUSIP number as the Exchange Securities.
As soon as practicable after the close of the Exchange Offer
and/or the Private Exchange, as the case may be, the Company
shall:
(i) accept for exchange all Registrable Securities
duly tendered and not validly withdrawn pursuant to the Exchange
Offer in accordance with the terms of the Exchange Offer
Registration Statement and the letter of transmittal, which shall
be an exhibit thereto;
(ii) deliver to the Trustee for cancellation all
Registrable Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate
and deliver Exchange Securities or Private Exchange Securities,
as the case may be, to each Holder of Registrable Securities so
accepted for exchange in a principal amount equal to the
principal amount of the Registrable Securities of such Holder so
accepted for exchange.
Interest on each Exchange Security and Private Exchange
Security will accrue from the last date on which interest was
paid on the Registrable Securities surrendered in exchange
therefor or, if no interest has been paid on the Registrable
Securities, from the date of original issuance. The Exchange
Offer and the Private Exchange shall not be subject to any
conditions, other than (i) that the Exchange Offer or the Private
Exchange, or the making of any exchange by a Holder, does not
violate applicable law or any applicable interpretation of the
staff of the SEC, (ii) the due tendering of Registrable
Securities in accordance with the Exchange Offer and the Private
Exchange, (iii) that each Holder of Registrable Securities
exchanged in the Exchange Offer shall have represented that all
Exchange Securities to be received by it shall be acquired in the
ordinary course of its business and that at the time of the
consummation of the Exchange Offer it shall have no arrangement
or understanding with any person to participate in the
distribution (within the meaning of the 0000 Xxx) of the Exchange
Securities and shall have made such other representations as may
be reasonably necessary under applicable SEC rules, regulations
or interpretations to render the use of Form S-4 or other
appropriate form under the 1933 Act available and (iv) that no
action or proceeding shall have been instituted or threatened in
any court or by or before any governmental agency with respect to
the Exchange Offer or the Private Exchange which, in the
Company's judgment, would reasonably be expected to impair the
ability of the Company to proceed with the Exchange Offer or the
Private Exchange. The Company shall inform the Initial
Purchasers of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchasers shall have the
right to contact such Holders and otherwise facilitate the tender
of Registrable Securities in the Exchange Offer.
2.2 Shelf Registration. (i) If, because of any changes
in law, SEC rules or regulations or applicable interpretations
thereof by the staff of the SEC, the Company is not permitted to
effect the Exchange Offer as contemplated by Section 2.1 hereof,
(ii) if for any other reason the Exchange Offer Registration
Statement is not declared effective within 150 days following the
original issue of the Registrable Securities or the Exchange
Offer is not consummated within 180 days after the original issue
of the Registrable Securities, (iii) upon the request of any of
the Initial Purchasers with respect to Securities held by such
Initial Purchaser that are not eligible for exchange in the
Exchange Offer if the Prospectus included in the Exchange Offer
Registration Statement is not available for resales or (iv) if a
Holder is not permitted to participate in the Exchange Offer or
does not receive fully tradeable Exchange Securities pursuant to
the Exchange Offer and if the Prospectus included in the Exchange
Offer Registration Statement is not available for resales (it
being understood that a requirement to deliver a Prospectus in
connection with market-making activities or other trading shall
not result in the applicable securities not being "fully
tradeable"), then in case of each of clauses (i) through (iv) the
Company shall, at its cost:
(a) As promptly as practicable, use its reasonable
best efforts to file with the SEC, and thereafter shall use its
reasonable best efforts to cause to be declared effective as
promptly as practicable but no later than 150 days after becoming
obligated as set forth in each of clauses (i) through (iv) above,
a Shelf Registration Statement relating to the offer and sale of
the Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by the
Majority Holders participating in the Shelf Registration and set
forth in such Shelf Registration Statement.
(b) Use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective in order to
permit the Prospectus forming part thereof to be usable by
Holders for a period of two years from the date the Shelf
Registration Statement is declared effective by the SEC, or for
such shorter period that will terminate when all Registrable
Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or cease to be
outstanding or otherwise to be Registrable Securities (the
"Effectiveness Period"); provided, however, that the
Effectiveness Period in respect of the Shelf Registration
Statement shall be extended to the extent required to permit
dealers to comply with the applicable prospectus delivery
requirements of Rule 174 under the 1933 Act and as otherwise
provided herein.
(c) Notwithstanding any other provisions hereof,
use its best efforts to ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming
part thereof and any supplement thereto complies in all material
respects with the 1933 Act and the rules and regulations
thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any Prospectus
forming part of any Shelf Registration Statement, and any
supplement to such Prospectus (as amended or supplemented from
time to time), does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements, in light of the circumstances under which they
were made, not misleading.
The Company shall not permit any securities other than
the Registrable Securities to be included in the Shelf
Registration Statement. The Company further agrees, if
necessary, to supplement or amend the Shelf Registration
Statement, as required by Section 3(b) below, and to furnish to
the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed
with the SEC.
2.3 Expenses. The Company shall pay all Registration
Expenses in connection with the registration pursuant to
Section 2.1 or 2.2. Each Holder shall pay all underwriting
discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
2.4. Effectiveness. (a) The Company will be deemed not
have used its best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as
the case may be, to become, or to remain, effective during the
requisite period if the Company voluntarily takes any action that
would, or omits to take any action which omission would, result
in any such Registration Statement not being declared effective
or in the Holders of Registrable Securities covered thereby not
being able to exchange or offer and sell such Registrable
Securities during that period as and to the extent contemplated
hereby, unless such action is required by applicable law.
(b) An Exchange Offer Registration Statement pursuant to
Section 2.1 hereof or a Shelf Registration Statement pursuant to
Section 2.2 hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided,
however, that if, after it has been declared effective, the
offering of Registrable Securities pursuant to an Exchange Offer
Registration Statement or a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court,
such Registration Statement will be deemed not to have become
effective during the period of such interference, until the
offering of Registrable Securities pursuant to such Registration
Statement may legally resume.
2.5 Interest. The Indenture executed in connection with
the Securities will provide that in the event that either (a) the
Exchange Offer Registration Statement is not filed with the SEC
on or prior to the 75th calendar day following the date of
original issue of the Securities, (b) the Exchange Offer
Registration Statement has not been declared effective on or
prior to the 150th calendar day following the date of original
issue of the Securities or (c) the Exchange Offer is not
consummated on or prior to the 180th calendar day following the
date of original issue of the Securities, or a Shelf Registration
Statement is not declared effective on or prior to the 150th day
after becoming obligated to file a Shelf Registration Statement
(each such event referred to in clauses (a) through (c) above, a
"Registration Default"), the interest rate borne by the
Securities shall be increased ("Additional Interest") by 0.25%
per annum upon the occurrence of each Registration Default, which
rate will increase by an additional 0.25% after each 90-day
period that such Additional Interest continues to accrue under
any such circumstance, provided that the maximum aggregate
increase in the interest rate will in no event exceed 1.00% per
annum. Following the cure of all Registration Defaults
(including, without limitation, by the filing or effectiveness of
the Exchange Offer Registration Statement, the declaration of
effectiveness or the consummation of the Exchange Offer at a date
after the specified deadline) the accrual of Additional Interest
will cease and the interest rate will revert to the original rate
specified in the Securities.
If the Shelf Registration Statement is unusable by the
Holders for any reason, and the aggregate number of days in any
consecutive twelve-month period for which the Shelf Registration
Statement shall not be usable exceeds 30 days in the aggregate,
then the interest rate borne by the Securities will be increased
by 0.25% per annum of the principal amount of the Securities for
the first 90-day period (or portion thereof) beginning on the
31st day that such Shelf Registration Statement ceases to be
usable, which rate shall be increased by an additional 0.25% per
annum of the principal amount of the Securities at the beginning
of each subsequent 90-day period, provided that the maximum
aggregate increase in the interest rate will in no event exceed
1.00% per annum. Any amounts payable under this paragraph shall
also be deemed "Additional Interest" for purposes of this
Agreement. Upon the Shelf Registration Statement once again
becoming usable, the interest rate borne by the Securities will
be reduced to the original interest rate if the Company is
otherwise in compliance with this Agreement at such time.
Additional Interest shall be computed based on the actual number
of days elapsed in each 90-day period in which the Shelf
Registration Statement is unusable.
The Company shall notify the Trustee within three business
days after each and every date on which an event occurs in
respect of which Additional Interest is required to be paid (an
"Event Date"). Additional Interest shall be paid by depositing
with the Trustee, in trust, for the benefit of the Holders of
Registrable Securities, on or before the applicable semiannual
interest payment date, immediately available funds in sums
sufficient to pay the Additional Interest then due. The
Additional Interest due shall be payable on each interest payment
date to the record Holder of Securities entitled to receive the
interest payment to be paid on such date as set forth in the
Indenture. Each obligation to pay Additional Interest shall be
deemed to accrue from and including the day following the
applicable Event Date.
It is hereby agreed that the Additional Interest provided
for in this Section 2.5 constitutes a reasonable estimate of and
shall constitute the sole damages and remedy in law or in equity
that will be suffered by Holders by reason of the failure of
(i) the Exchange Offer Registration Statement to be filed,
(ii) the Shelf Registration Statement to remain usable, (iii) the
Exchange Offer Registration Statement to be declared effective,
(iv) the Exchange Offer to be consummated or (v) the Shelf
Registration Statement to be declared effective, in each case to
the extent required by this Agreement, and the right to seek any
additional damages or remedy is hereby irrevocably waived.
3. Registration Procedures.
In connection with the obligations of the Company with
respect to Registration Statements pursuant to Sections 2.1 and
2.2 hereof, the Company shall:
(a) prepare and file with the SEC a Registration
Statement, within the relevant time period specified in
Section 2, on the appropriate form under the 1933 Act, which form
(i) shall be selected by the Company, (ii) shall, in the case of
a Shelf Registration, be available for the sale of the
Registrable Securities by the selling Holders thereof,
(iii) shall comply as to form in all material respects with the
requirements of the applicable form and include or incorporate by
reference all financial statements required by the SEC to be
filed therewith or incorporated by reference therein, and
(iv) shall comply in all respects with the requirements of
Regulation S-T under the 1933 Act, and use its reasonable best
efforts to cause such Registration Statement to become effective
and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may
be necessary under applicable law to keep such Registration
Statement effective for the applicable period; and cause each
Prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provision then in force) under the
1933 Act and comply with the provisions of the 1933 Act, the 1934
Act and the rules and regulations thereunder applicable to them
with respect to the disposition of all securities covered by each
Registration Statement during the applicable period in accordance
with the intended method or methods of distribution by the
selling Holders thereof (including sales by any Participating
Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities, at least five business days
prior to filing, that a Shelf Registration Statement with respect
to the Registrable Securities is being filed and advising such
Holders that the distribution of Registrable Securities will be
made in accordance with the method selected by the Majority
Holders participating in the Shelf Registration; (ii) furnish to
each Holder of Registrable Securities and to each underwriter of
an underwritten offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto
and such other documents as such Holder or underwriter may
reasonably request, including financial statements and schedules
and, if the Holder so requests, all exhibits in order to
facilitate the public sale or other disposition of the
Registrable Securities; and (iii) hereby consent to the use of
the Prospectus or any amendment or supplement thereto by each of
the selling Holders of Registrable Securities in connection with
the offering and sale of the Registrable Securities covered by
the Prospectus or any amendment or supplement thereto;
(d) use its reasonable best efforts to register or
qualify the Registrable Securities under all applicable state
securities or "blue sky" laws of such jurisdictions as any Holder
of Registrable Securities covered by a Registration Statement and
each underwriter of an underwritten offering of Registrable
Securities shall reasonably request by the time the applicable
Registration Statement is declared effective by the SEC, and do
any and all other acts and things which may be reasonably
necessary or advisable to enable each such Holder and underwriter
to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided, however,
that the Company shall not be required to (i) qualify as a
foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify
but for this Section 3(d), or (ii) take any action which would
subject it to general service of process or taxation in any such
jurisdiction where it is not then so subject;
(e) notify promptly each Holder of Registrable
Securities under a Shelf Registration or any Participating
Broker-Dealer who has notified the Company that it is utilizing
the Exchange Offer Registration Statement as provided in
paragraph (f) below and, if requested by such Holder or
Participating Broker-Dealer, confirm such notification in writing
promptly (which notification pursuant to clauses (ii) through
(vii) hereof shall be accompanied by an instruction to suspend
the use of the prospectus until the requisite changes have been
made) (i) when a Registration Statement has become effective and
when any post-effective amendments and supplements thereto become
effective, (ii) of any request by the SEC or any state securities
authority for post-effective amendments and supplements to a
Registration Statement and Prospectus or for additional
information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iv) in the case of a Shelf
Registration, if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of the
Company contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to the
offering cease to be true and correct in all material respects,
(v) of the happening of any event or the discovery of any facts
during the period a Shelf Registration Statement is effective
which may make any statement made in such Registration Statement
or the related Prospectus untrue in any material respect or which
may require the making of any changes in such Registration
Statement or Prospectus in order to make the statements therein
not misleading, (vi) of the receipt by the Company of any
notification with respect to the suspension of the qualification
of the Registrable Securities or the Exchange Securities, as the
case may be, for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (vii) of any
determination by the Company that a post-effective amendment to
such Registration Statement would be appropriate or supplement to
any prospectus used thereunder;
(f) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration
Statement a section entitled "Plan of Distribution" which section
shall be reasonably acceptable to Xxxxxxx Xxxxx on behalf of the
Participating Broker-Dealers, and which shall contain a summary
statement of the positions taken or policies made by the staff of
the SEC with respect to the potential "underwriter" status of any
broker-dealer that holds Registrable Securities acquired for its
own account as a result of market-making activities or other
trading activities and that will be the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange
Securities to be received by such broker-dealer in the Exchange
Offer, whether such positions or policies have been publicly
disseminated by the staff of the SEC or such positions or
policies, in the reasonable judgment of Xxxxxxx Xxxxx on behalf
of the Participating Broker-Dealers and its counsel, represent
the prevailing views of the staff of the SEC, including a
statement that any such broker-dealer who receives Exchange
Securities for Registrable Securities pursuant to the Exchange
Offer may be deemed a statutory underwriter and must deliver a
prospectus meeting the requirements of the 1933 Act in connection
with any resale of such Exchange Securities, (ii) furnish to each
Participating Broker-Dealer who has delivered to the Company the
notice referred to in Section 3(e), without charge, as many
copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary prospectus, and
any amendment or supplement thereto, as such Participating
Broker-Dealer may reasonably request, (iii) hereby consent to the
use of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement thereto, by
any Person subject to the prospectus delivery requirements of the
SEC, including all Participating Broker-Dealers, in connection
with the sale or transfer of the Exchange Securities covered by
the Prospectus or any amendment or supplement thereto, and
(iv) include in the transmittal letter or similar documentation
to be executed by an exchange offeree in order to participate in
the Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a result
of market-making activities or other trading activities, it will
deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of Exchange Securities received in
respect of such Registrable Securities pursuant to the Exchange
Offer;" and
(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a
Prospectus in connection with the exchange of Registrable
Securities, the broker-dealer will not be deemed to admit that it
is an underwriter within the meaning of the 1933 Act; and
(g) (i) in the case of an Exchange Offer, furnish to
counsel for the Initial Purchasers and (ii) in the case of a
Shelf Registration, furnish to counsel for the Holders of
Registrable Securities copies of any comment letters received
from the SEC or any other request by the SEC or any state
securities authority for amendments or supplements to a
Registration Statement and Prospectus or for additional
information;
(h) make reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of a Registration
Statement at the earliest possible moment;
(i) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, and each underwriter, if any,
without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto, including
financial statements and schedules (without documents
incorporated therein by reference and all exhibits thereto,
unless requested);
(j) in the case of a Shelf Registration, cooperate with
the selling Holders of Registrable Securities to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive
legends; and enable such Registrable Securities to be in such
denominations (consistent with the provisions of the Indenture)
and registered in such names as the selling Holders or the
underwriters, if any, may reasonably request at least three
business days prior to the closing of any sale of Registrable
Securities;
(k) in the case of a Shelf Registration, upon the
occurrence of any event or the discovery of any facts, each as
contemplated by Sections 3(e)(v) and 3(e)(vi) hereof, as promptly
as practicable after the occurrence of such an event, use its
reasonable best efforts to prepare a supplement or post-effective
amendment to the Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities or Participating Broker-
Dealers, such Prospectus will not contain at the time of such
delivery any untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading or will remain so qualified. At such time as such
public disclosure is otherwise made or the Company determines
that such disclosure is not necessary, in each case to correct
any misstatement of a material fact or to include any omitted
material fact, the Company agrees promptly to notify each Holder
of such determination and to furnish each Holder such number of
copies of the Prospectus as amended or supplemented, as such
Holder may reasonably request;
(l) in the case of a Shelf Registration, a reasonable
time prior to the filing of any Registration Statement, any
Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is
to be incorporated by reference into a Registration Statement or
a Prospectus after initial filing of a Registration Statement,
provide copies of such document to the Initial Purchasers on
behalf of such Holders; and make representatives of the Company
as shall be reasonably requested by the Holders of Registrable
Securities, or the Initial Purchasers on behalf of such Holders,
available for discussion of such document;
(m) obtain a CUSIP number for all Exchange Securities,
Private Exchange Securities or Registrable Securities, as the
case may be, not later than the effective date of a Registration
Statement, and provide the Trustee with printed certificates for
the Exchange Securities, Private Exchange Securities or the
Registrable Securities, as the case may be, in a form eligible
for deposit with the Depositary;
(n) (i) cause the Indenture to be qualified under the
TIA in connection with the registration of the Exchange
Securities or Registrable Securities, as the case may be,
(ii) cooperate with the Trustee and the Holders to effect such
changes to the Indenture as may be required for the Indenture to
be so qualified in accordance with the terms of the TIA and
(iii) execute, and use its best efforts to cause the Trustee to
execute, all documents as may be required to effect such changes,
and all other forms and documents required to be filed with the
SEC to enable the Indenture to be so qualified in a timely
manner;
(o) in the case of a Shelf Registration, enter into
agreements (including underwriting agreements) and take all other
customary and appropriate actions in order to expedite or
facilitate the disposition of such Registrable Securities and in
such connection whether or not an underwriting agreement is
entered into and whether or not the registration is an
underwritten registration:
(i) make such representations and warranties to the
Holders of such Registrable Securities and the underwriters, if
any, in form, substance and scope as are customarily made by
issuers to underwriters in similar underwritten offerings as may
be reasonably requested by them;
(ii) obtain opinions of counsel to the Company and
updates thereof (which opinions (in form, scope and substance)
shall be customary and reasonably satisfactory to the managing
underwriters, if any, and the holders of a majority in principal
amount of the Registrable Securities being sold) addressed to the
selling Holders and the underwriters, if any, covering the
matters customarily covered in opinions requested in sales of
securities or underwritten offerings and such other matters as
may be reasonably requested by such Holders and underwriters,
subject in each case to appropriate limitations;
(iii) obtain "cold comfort" letters and updates
thereof from the Company's independent certified public
accountants (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements
are, or are required to be, included in the Registration
Statement) addressed to the underwriters, if any, and use
reasonable efforts to have such letter addressed to the selling
Holders of Registrable Securities (to the extent consistent with
Statement on Auditing Standards No. 72 of the American Institute
of Certified Public Accounts), such letters to be in customary
form and covering matters of the type customarily covered in
"cold comfort" letters to underwriters in connection with similar
underwritten offerings;
(iv) enter into a securities sales agreement with
the Holders and an agent of the Holders providing for, among
other things, the appointment of such agent for the selling
Holders for the purpose of soliciting purchases of Registrable
Securities, which agreement shall be in form, substance and scope
customary for similar offerings;
(v) if an underwriting agreement is entered into,
cause the same to set forth indemnification provisions and
procedures substantially equivalent to the indemnification
provisions and procedures set forth in Section 4 hereof with
respect to the underwriters and all other parties to be
indemnified pursuant to said Section or, at the request of any
underwriters, in the form customarily provided to such
underwriters in similar types of transactions; and
(vi) deliver such documents and certificates as may
be reasonably requested and as are customarily delivered in
similar offerings to the Holders of a majority in principal
amount of the Registrable Securities being sold and the managing
underwriters, if any.
The above shall be done at (i) the effectiveness of such
Registration Statement (and each post-effective amendment
thereto) and (ii) each closing under any underwriting or similar
agreement as and to the extent required thereunder;
(p) in the case of a Shelf Registration or if a
Prospectus is required to be delivered by any Participating
Broker-Dealer in the case of an Exchange Offer, make available
for inspection by representatives of the Holders of the
Registrable Securities, any underwriters participating in any
disposition pursuant to a Shelf Registration Statement, any
Participating Broker-Dealer and any counsel or accountant
retained by any of the foregoing, all financial and other
records, pertinent corporate documents and properties of the
Company reasonably requested by any such persons, and cause the
respective officers, directors, employees, and any other agents
of the Company to supply all information reasonably requested by
any such representative, underwriter, special counsel or
accountant in connection with a Registration Statement, and make
such representatives of the Company available for discussion of
such documents as shall be reasonably requested by the Initial
Purchasers, provided, however, that any information that is
designated in writing by the Issuers, in good faith, as
confidential at the time of delivery of such information shall be
kept confidential by the Holders or any such underwriter,
attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such
information becomes available to the public generally or through
a third party without an accompanying obligation of
confidentiality;
(q) (i) in the case of an Exchange Offer Registration
Statement, a reasonable time prior to the filing of any Exchange
Offer Registration Statement, any Prospectus forming a part
thereof, any amendment to an Exchange Offer Registration
Statement or amendment or supplement to such Prospectus, provide
copies of such document to the Initial Purchasers and to counsel
to the Holders of Registrable Securities and make such changes in
any such document prior to the filing thereof as the Initial
Purchasers or counsel to the Holders of Registrable Securities
may reasonably request and, except as otherwise required by
applicable law, not file any such document in a form to which the
Initial Purchasers on behalf of the Holders of Registrable
Securities and counsel to the Holders of Registrable Securities
shall not have previously been advised and furnished a copy of or
to which the Initial Purchasers on behalf of the Holders of
Registrable Securities or counsel to the Holders of Registrable
Securities shall reasonably object, and make the representatives
of the Company available for discussion of such documents as
shall be reasonably requested by the Initial Purchasers; and
(ii) in the case of a Shelf Registration, a
reasonable time prior to filing any Shelf Registration Statement,
any Prospectus forming a part thereof, any amendment to such
Shelf Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Holders of
Registrable Securities, to the Initial Purchasers, to counsel for
the Holders and to the underwriter or underwriters of an
underwritten offering of Registrable Securities, if any, make
such changes in any such document prior to the filing thereof as
the Initial Purchasers, the counsel to the Holders or the
underwriter or underwriters reasonably request and not file any
such document in a form to which the Majority Holders, the
Initial Purchasers on behalf of the Holders of Registrable
Securities, counsel for the Holders of Registrable Securities or
any underwriter shall not have previously been advised and
furnished a copy of or to which the Majority Holders, the Initial
Purchasers of behalf of the Holders of Registrable Securities,
counsel to the Holders of Registrable Securities or any
underwriter shall reasonably object, and make the representatives
of the Company available for discussion of such document as shall
be reasonably requested by the Holders of Registrable Securities,
the Initial Purchasers on behalf of such Holders, counsel for the
Holders of Registrable Securities or any underwriter.
(r) in the case of a Shelf Registration, use its
reasonable best efforts to cause all Registrable Securities to be
listed on any securities exchange on which similar debt
securities issued by the Company are then listed if requested by
the Majority Holders, or if requested by the underwriter or
underwriters of an underwritten offering of Registrable
Securities, if any;
(s) in the case of a Shelf Registration, use its
reasonable best efforts to cause the Registrable Securities to be
rated by the appropriate rating agencies, if so requested by the
Majority Holders, or if requested by the underwriter or
underwriters of an underwritten offering of Registrable
Securities, if any;
(t) otherwise comply with all applicable rules and
regulations of the SEC and make available to its security
holders, as soon as reasonably practicable, an earnings statement
covering at least 12 months which shall satisfy the provisions of
Section 11(a) of the 1933 Act and Rule 158 thereunder;
(u) cooperate and assist in any filings required to be
made with the NASD and, in the case of a Shelf Registration, in
the performance of any due diligence investigation by any
underwriter and its counsel (including any "qualified independent
underwriter" that is required to be retained in accordance with
the rules and regulations of the NASD); and
(v) upon consummation of an Exchange Offer or a Private
Exchange, obtain a customary opinion of counsel to the Company
addressed to the Trustee for the benefit of all Holders of
Registrable Securities participating in the Exchange Offer or
Private Exchange, and which includes an opinion that (i) the
Company has duly authorized, executed and delivered the Exchange
Securities and/or Private Exchange Securities, as applicable, and
the related indenture, and (ii) each of the Exchange Securities
and related indenture constitute a legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its respective terms (with customary exceptions).
In the case of a Shelf Registration Statement, the Company
may (as a condition to such Holder's participation in the Shelf
Registration) require each Holder of Registrable Securities to
furnish to the Company such information regarding the Holder and
the proposed distribution by such Holder of such Registrable
Securities as the Company may from time to time reasonably
request in writing, and the Company may exclude from such
registration the Registrable Securities of any Holder that fails
to furnish such information within a reasonable time after
receiving such request.
In the case of a Shelf Registration Statement, each Holder
agrees that, upon receipt of any notice from the Company of the
happening of any event or the discovery of any facts, each of the
kind described in paragraphs (ii) through (vii) of Section 3(e)
hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until
such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(k) hereof or until
advised in writing by the Company that the use of the applicable
prospectus may be resumed, and, if so directed by the Company,
such Holder will deliver to the Company (at its expense) all
copies in such Holder's possession, other than permanent file
copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of
receipt of such notice.
In the event that the Company fails to effect the Exchange
Offer or file any Shelf Registration Statement and maintain the
effectiveness of any Shelf Registration Statement as provided
herein, the Company shall not file any Registration Statement
with respect to any securities (within the meaning of
Section 2(a)(1) of the 0000 Xxx) that constitute an offering of
bonds, debentures or other evidence of indebtedness of the
Company other than Registrable Securities.
If any of the Registrable Securities covered by any Shelf
Registration Statement are to be sold in an underwritten
offering, the underwriter or underwriters and manager or managers
that will manage such offering will be selected by the Majority
Holders of such Registrable Securities included in such offering
and shall be acceptable to the Company. No Holder of Registrable
Securities may participate in any underwritten registration
hereunder unless such Holder (a) 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 (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such
underwriting arrangements.
4. Indemnification; Contribution.
(a) The Company agrees to indemnify and hold harmless
the Initial Purchasers, each Holder, each Participating Broker-
Dealer, each Person who participates as an underwriter (any such
Person being an "Underwriter") and each Person, if any, who
controls any Holder or Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, (at least quarterly), arising out of any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment or
supplement thereto) pursuant to which Exchange Securities or
Registrable Securities were registered under the 1933 Act,
including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact to be
stated therein or necessary to make the statements therein not
misleading, or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus
(or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, (at least quarterly), to the extent of
the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 4(d)
below) any such settlement is effected with the written consent
of the Company; and
(iii) against any and all expense whatsoever, (at least
quarterly) (including the reasonable fees and disbursements of
counsel), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity
with written information furnished to the Company by any Holder
or Underwriter expressly for use in a Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment
thereto); provided, further, that with respect to any loss,
liability, claim, damage or expense arising out of any untrue
statement or omission or alleged untrue statement or omission
contained in any prospectus (or any amendment or supplement
thereto), the foregoing indemnity shall not inure to the benefit
of any person if (A) a copy of the prospectus with all amendments
or supplements thereto available at such time was to be sent or
given by or on behalf of such person and such amendments or
supplements were not sent or given and (B) such untrue statement
or omission or alleged untrue statement or omission was corrected
in the amendment or supplement thereto available at such time.
(b) Each Holder severally agrees to indemnify and
hold harmless the Company, the Initial Purchasers, each
Underwriter and the other selling Holders, and each Person, if
any, who controls the Company, the Initial Purchasers, any
Underwriter or any other selling Holder within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against
any and all loss, liability, claim, damage and expense described
in the indemnity contained in Section 4(a) hereof, as incurred,
but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Shelf
Registration Statement (or any amendment thereto) or any
Prospectus included therein (or any amendment or supplement
thereto) in reliance upon and in conformity with written
information with respect to such Holder furnished to the Company
by such Holder expressly for use in the Shelf Registration
Statement (or any amendment thereto) or such Prospectus (or any
amendment or supplement thereto), and shall reimburse the Company
for any and all expenses reasonably incurred by the Company 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 no such Holder
shall be liable for any claims hereunder in excess of the amount
of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Shelf Registration
Statement.
(c) Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of
any action or proceeding commenced against it in respect of which
indemnity may be sought hereunder, but failure so to notify an
indemnifying party shall not relieve such indemnifying party from
any liability hereunder except to the extent it is materially
prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account
of this indemnity agreement. In the case of parties indemnified
pursuant to Section 4(a) above, counsel to the indemnified
parties shall be selected by the Representative and shall be
reasonably acceptable to the Company, and, in the case of parties
indemnified pursuant to Section 4(b) above, counsel to the
indemnified parties shall be selected by the Company and shall be
reasonably acceptable to the Representative. An indemnifying
party may participate at its own expense in the defense of any
such action and, to the extent it wishes, shall be entitled to
assume the defense of any such action with counsel reasonably
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 4 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 an indemnified party shall have the right to employ its own
counsel in any such action, but the fees, expenses and other
charges of such counsel for the indemnified party will be at the
expense of such indemnified party unless (i) the employment of
counsel by the indemnified party has been authorized in writing
by the indemnifying party, (ii) the indemnified party has
reasonably concluded (based upon advice of counsel to the
indemnified party) that there may be legal defenses available to
it or other indemnified parties that are different from or in
addition to those available to the indemnifying party, (iii) a
conflict or potential conflict exists (based upon advice of
counsel to the indemnified party) between the indemnified party
and the indemnifying party (in which case the indemnifying party
will not have the right to direct the defense of such action on
behalf of the indemnified party) or (iv) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the
indemnified party to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements
and other charges of counsel will be at the expense of the
indemnifying party or parties. In no event shall counsel to the
indemnifying party (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event
shall the indemnifying party or parties be liable for the fees
and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the
same general allegations or circumstances. Each indemnified
party shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim.
No indemnified party seeking or otherwise eligible for
indemnification or contribution hereunder will, without the prior
written consent of the indemnifying party (which shall not be
unreasonably withheld), settle, compromise, consent to the entry
of any judgment in or otherwise seek to terminate any action,
claim, suit, investigation or proceeding pursuant to which
indemnity or contribution is or may be available hereunder. No
indemnifying party shall, without the prior written consent of
the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this
Section 4 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
Notwithstanding this Section 4(c), if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an
indemnifying party shall not be liable for any settlement of the
nature contemplated by this Section 4(c) effected without its
consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent
it considers such request to be reasonable and (ii) provides
written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such
settlement.
(d) If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature
contemplated by Section 4(a)(ii) effected without its written
consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance
with such request prior to the date of such settlement.
(e) If the indemnification provided for in this
Section 4 is for any reason unavailable to or insufficient to
hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate
amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, in such
proportion as is appropriate to reflect the relative fault of the
Company on the one hand and the Holders and the Initial
Purchasers on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable
considerations.
The relative fault of the Company on the one hand and the
Holders and the Initial Purchasers on the other hand shall be
determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to
information supplied by the Company, the Holders or the Initial
Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission.
The Company, the Holders and the Initial Purchasers agree
that it would not be just and equitable if contribution pursuant
to this Section 4 were determined by pro rata allocation (even if
the Initial Purchasers were treated as one entity for such
purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this
Section 4. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and
referred to above in this Section 4 shall be deemed to include
any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 4, no Initial
Purchaser shall be required to contribute any amount in excess of
the amount by which the total price at which the Securities sold
by it were offered exceeds the amount of any damages which such
Initial Purchaser 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 0000 Xxx) shall be entitled to
contribution from any Person who was not guilty of such
fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who
controls an Initial Purchaser or Holder within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as such Initial Purchaser or
Holder, and each director of the Company, and each Person, if
any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company. The Initial Purchasers'
respective obligations to contribute pursuant to this Section 7
are several in proportion to the principal amount of Securities
set forth opposite their respective names in Schedule A to the
Purchase Agreement and not joint.
5. Miscellaneous.
5.1 Rule 144 and Rule 144A. For so long as the Company
is subject to the reporting requirements of Section 13 or 15 of
the 1934 Act, the Company covenants that it will file the reports
required to be filed by it under the 1933 Act and Section 13(a)
or 15(d) of the 1934 Act and the rules and regulations adopted by
the SEC thereunder. If the Company ceases to be so required to
file such reports, the Company covenants that it will upon the
request of any Holder of Registrable Securities (a) make publicly
available such information as is necessary to permit sales
pursuant to Rule 144 under the 1933 Act, (b) deliver such
information to a prospective purchaser as is necessary to permit
sales pursuant to Rule 144A under the 1933 Act and it will take
such further action as any Holder of Registrable Securities may
reasonably request, and (c) take such further action that is
reasonable in the circumstances, in each case, to the extent
required from time to time to enable such Holder to sell its
Registrable Securities without registration under the 1933 Act
within the limitation of the exemptions provided by (i) Rule 144
under the 1933 Act, as such Rule may be amended from time to
time, (ii) Rule 144A under the 1933 Act, as such Rule may be
amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of
any Holder of Registrable Securities, the Company will deliver to
such Holder a written statement as to whether it has complied
with such requirements. Notwithstanding any of the foregoing,
nothing in this Section 5.1 shall be deemed to require the
Company to register any of its securities pursuant to the
Exchange Act.
5.2 No Inconsistent Agreements. The Company has not
entered into and the Company will not after the date of this
Agreement enter into any agreement which is inconsistent with the
rights granted to the Holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not and will not for
the term of this Agreement in any way conflict with the rights
granted to the holders of the Company's other issued and
outstanding securities under any such agreements.
5.3 Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the
Company has obtained the written consent of Holders of at least a
majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification,
supplement, waiver or departure.
5.4 Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand delivery, registered first-class mail, telex, telecopier, or
any courier guaranteeing overnight delivery (a) if to a Holder,
at the most current address given by such Holder to the Company
by means of a notice given in accordance with the provisions of
this Section 5.4, which address initially is the address set
forth in the Purchase Agreement with respect to the Initial
Purchasers; and (b) if to the Company, initially at the Company's
address and to its counsel set forth in the Purchase Agreement,
and thereafter at such other address of which notice is given in
accordance with the provisions of this Section 5.4.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally
delivered; two business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when
receipt is 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 under the Indenture, at the address specified in such
Indenture.
5.5 Successor and Assigns. 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; provided that nothing 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. 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, including the
restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such person shall be
entitled to receive the benefits hereof.
5.6 Third Party Beneficiaries. The Initial Purchasers
(even if the Initial Purchasers are not Holders of Registrable
Securities) shall be third party beneficiaries to the agreements
made hereunder between the Company, on the one hand, and the
Holders, on the other hand, and 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. Each Holder of Registrable Securities shall
be a third party beneficiary to the agreements made hereunder
between the Company, on the one hand, and the Initial Purchasers,
on the other hand, and shall have the right to enforce such
agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights hereunder.
5.7. Specific Enforcement. Without limiting the
remedies available to the Initial Purchasers and the Holders, the
Company acknowledges that any failure by the Company to comply
with its obligations under Sections 2.1 through 2.4 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 would 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 Company's obligations under
Sections 2.1 through 2.4 hereof subject to the last paragraph of
Section 2.5.
5.8. Restriction on Resales. Until the expiration of
two years after the original issuance of the Securities and the
Guarantees, the Company and the Guarantor will not, and will
cause their "affiliates" (as such term is defined in
Rule 144(a)(1) under the 0000 Xxx) not to, resell any Securities
and Guarantees which are "restricted securities" (as such term is
defined under Rule 144(a)(3) under the 0000 Xxx) that have been
reacquired by any of them and shall immediately upon any purchase
of any such Securities and Guarantees submit such Securities and
Guarantees to the Trustee for cancellation.
5.9 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.
5.10 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.12 Severability. In the event that 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.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
CK WITCO CORPORATION
By:
Name:
Title:
Confirmed and accepted as
of the date first above
written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
ABN AMRO INCORPORATED
BANK OF AMERICA SECURITIES LLC
CHASE SECURITIES INC.
DEUTSCHE BANK SECURITIES INC.
XXXXXXX, XXXXX & CO.
XXXXXXX XXXXX XXXXXX INC.
BY: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
Name:
Title:
