REGISTRATION RIGHTS AGREEMENT
Dated as of March 10, 1998
Among
SITEL CORPORATION, as Company,
each of the Subsidiary Guarantors (as hereinafter defined),
and
BT ALEX. XXXXX INCORPORATED,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
and
SBC WARBURG DILLON READ INC.,
as Initial Purchasers
9 1/4% Senior Subordinated Notes due 2006
TABLE OF CONTENTS
Page
1. Definitions............................................................1
2. Exchange Offer.........................................................4
3. Shelf Registration.....................................................8
4. Additional Interest....................................................9
5. Registration Procedures...............................................10
6. Registration Expenses.................................................18
7. Indemnification.......................................................19
8. Rules 144 and 144A....................................................22
9. Underwritten Registrations............................................23
10. Miscellaneous.........................................................23
(a) No Inconsistent Agreements........................................23
(b) Adjustments Affecting Registrable Notes...........................23
(c) Amendments and Waivers............................................24
(d) Notices...........................................................24
(e) Successors and Assigns............................................24
(f) Counterparts......................................................25
(g) Headings..........................................................25
(h) GoverningLaw......................................................25
(i) Severability......................................................25
(j) Securities Held by the Company or Its Affiliates..................25
(k) Third-Party Beneficiaries.........................................25
(l) Entire Agreement..................................................25
(m) Subsidiary Guarantor a Party......................................26
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
March 10, 1998, among SITEL Corporation, a Minnesota corporation, as Company
(the "Company") and the Subsidiary Guarantors (as hereinafter defined), on
the one hand, and BT ALEX. XXXXX INCORPORATED, XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED, and SBC WARBURG DILLON READ INC., as initial purchasers
(the "Initial Purchasers"), on the other hand.
This Agreement is entered into in connection with the Purchase
Agreement, dated as of March 5, 1998, among the Company and the Subsidiary
Guarantors, on the one hand, and the Initial Purchasers, on the other hand
(the "Purchase Agreement"), which provides for the sale by the Company to the
Initial Purchasers of $100,000,000 aggregate principal amount of the
Company's 9 1/4% Senior Subordinated Notes due 2006 (the "Notes"). In order
to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company and the Subsidiary Guarantors have agreed to provide the registration
rights set forth in this Agreement for the benefit of the Initial Purchasers
and any subsequent holder or holders of the Notes. The execution and delivery
of this Agreement is a condition to the Initial Purchasers' obligation to
purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4 hereof.
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2 hereof.
Effectiveness Date: The 135th day after the Issue Date; provided,
however, that with respect to any Shelf Registration, the Effectiveness Date
shall be the 60th day after the Filing Date with respect thereto.
Effectiveness Period: See Section 3 hereof.
Event Date: See Section 4 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2 hereof.
Exchange Offer: See Section 2 hereof.
Exchange Offer Registration Statement: See Section 2 hereof.
Filing Date: (A) If no Registration Statement has been filed by the
Company and the Subsidiary Guarantors pursuant to this Agreement, the 45th
day after the Issue Date, and (B) in each other case (which may be applicable
notwithstanding the consummation of the Exchange Offer), the 30th day after
the delivery of a Shelf Notice.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indemnified Person: See Section 7(c) hereof.
Indemnifying Person: See Section 7(c) hereof.
Indenture: The Indenture, dated as of March 10, 1998 by and between
the Company, the Subsidiary Guarantors and The First National Bank of
Maryland, as Trustee, pursuant to which the Notes are being issued, as the
same may be amended or supplemented from time to time in accordance with the
terms thereof.
Initial Purchasers: See the introductory paragraphs hereto.
Initial Shelf Registration: See Section 3(a) hereof.
Inspectors: See Section 5(n) hereof.
Issue Date: March 10, 1998, the date of original issuance of the
Notes.
Company: See the introductory paragraphs hereto.
NASD: See Section 5(s) hereof.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2 hereof.
Person: An individual, trustee, corporation, partnership, joint
stock company, trust, unincorporated association, union, business
association, firm or other legal entity.
Private Exchange: See Section 2 hereof.
Private Exchange Notes: See Section 2 hereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule
430A promulgated under the Securities Act and any term sheet filed pursuant
to Rule 434 under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
Prospectus, including
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post-effective amendments, and all material incorporated by reference or
deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs hereof.
Records: See Section 5(n) hereof.
Registrable Notes: Each Note upon its original issuance and at all
times subsequent thereto, each Exchange Note as to which Section 2(c)(iv)
hereof is applicable upon original issuance and at all times subsequent
thereto and each Private Exchange Note upon original issuance thereof and at
all times subsequent thereto, until (i) a Registration Statement (other than,
with respect to any Exchange Note as to which Section 2(c)(iv) hereof is
applicable, the Exchange Offer Registration Statement) covering such Note,
Exchange Note or Private Exchange Note has been declared effective by the SEC
and such Note, Exchange Note or such Private Exchange Note, as the case may
be, has been disposed of in accordance with such effective Registration
Statement, (ii) such Note has been exchanged pursuant to the Exchange Offer
for an Exchange Note or Exchange Notes that may be resold without restriction
under state and federal securities laws, (iii) such Note, Exchange Note or
Private Exchange Note, as the case may be, ceases to be outstanding for
purposes of the Indenture or (iv) such Note, Exchange Note or Private
Exchange Note, as the case may be, may be resold without restriction or has
been resold pursuant to Rule 144 under the Securities Act.
Registration Statement: Any registration statement of the Company
and the Subsidiary Guarantors that covers any of the Notes, the Exchange
Notes or the Private Exchange Notes filed with the SEC under the Securities
Act, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits,
and all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and
sales of securities made in compliance therewith resulting in offers and
sales by subsequent holders that are not affiliates of the Company and the
Subsidiary Guarantors of such securities being free of the registration and
prospectus delivery requirements of the Securities Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
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Shelf Notice: See Section 2 hereof.
Shelf Registration: See Section 3(b) hereof.
Subsequent Shelf Registration: See Section 3(b) hereof.
Subsidiary Guarantors. As defined in the Indenture
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and the trustee (if
any) under any indenture governing the Exchange Notes and Private Exchange
Notes.
Underwritten registration or underwritten offering: A registration
in which securities of the Company or the Subsidiary Guarantors are sold to
an underwriter for reoffering to the public.
2. Exchange Offer
(a) The Company and the Subsidiary Guarantors shall file with the
SEC, no later than the Filing Date, a Registration Statement (the "Exchange
Offer Registration Statement") on an appropriate registration form with
respect to a registered offer (the "Exchange Offer") to exchange any and all
of the Registrable Notes for a like aggregate principal amount of notes of
the Company, guaranteed by the Subsidiary Guarantors, that are identical in
all material respects to the Notes (the "Exchange Notes"), except that the
Exchange Notes shall contain no restrictive legend thereon, and which are
entitled to the benefits of the Indenture or a trust indenture which is
identical in all material respects to the Indenture (other than such changes
to the Indenture or any such identical trust indenture as are necessary to
comply with the TIA) and which, in either case, has been qualified under the
TIA. Interest on each Exchange Note will accrue (A) from the later of (i) the
last interest payment date on which interest was paid on the Note surrendered
in exchange therefor or (ii) if the Note is surrendered for exchange on a
date in a period which includes the record date for an interest payment date
to occur on or after the date of the Exchange Offer and as to which interest
will be paid, the date of such interest payment date or (B) if no interest
has been paid on the Notes, from the Issue Date. The Exchange Offer shall
comply with all applicable tender offer rules and regulations under the
Exchange Act and other applicable law (provided, however, that the Company
and the Subsidiary Guarantors shall not be obligated to file in any
jurisdiction in which they are not qualified or take any action that would
subject them to general service of process or taxation in any jurisdiction
where they are not so subject). The Company and the Subsidiary Guarantors
shall use their best efforts to (x) cause the Exchange Offer Registration
Statement to be declared effective under the Securities Act on or before the
Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or
longer if required by applicable law) after the date that notice of the
Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on
or prior to the 165th day following the date on which the Exchange Offer
Registration Statement is declared effective by the SEC.
Each Holder that participates in the Exchange Offer will be
required, as a condition to its participation in the Exchange Offer, to
represent to the Company and the Subsidiary Guarantors in writing (which may
be contained in the applicable letter of transmittal)
4
that any Exchange Notes to be received by it will be acquired in the
ordinary course of its business, that at the time of the consummation of the
Exchange Offer such Holder will have no arrangement or understanding with any
Person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Notes in violation of the provisions of the
Securities Act, that such Holder is not an affiliate of the Company and the
Subsidiary Guarantors within the meaning of the Securities Act, that if such
holder is not a broker-dealer, that it is not engaged in, and does not intend
to engage in, the distribution of Exchange Notes, and that if such Holder is
a Participating Broker-Dealer (as hereinafter defined) that will receive
Exchange Notes for its own account in exchange for Notes that were acquired
as a result of market-making or other trading activities, that it will
deliver a prospectus in connection with any resale of such Exchange Notes.
Upon consummation of the Exchange Offer in accordance with this
Section 2, the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Registrable Notes that are Private Exchange
Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange
Notes held by Participating Broker-Dealers (as hereinafter defined), and the
Company and the Subsidiary Guarantors shall have no further obligation to
register Registrable Notes (other than Private Exchange Notes and other than
in respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies)
pursuant to Section 3 hereof.
No securities other than the Exchange Notes shall be included in the
Exchange Offer Registration Statement; provided, that the Company and the
Subsidiary Guarantors may include in the Exchange Offer Registration
Statement additional notes issued pursuant to the Indenture.
The Company and the Subsidiary Guarantors shall include within the
Prospectus contained in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution," reasonably acceptable to the Holders, which
shall contain a summary statement of the positions taken or policies made by
the staff of the SEC with respect to the potential "underwriter" status of
any broker-dealer that is the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of Exchange Notes received by such broker-dealer in
the Exchange Offer (a "Participating Broker-Dealer"), whether such positions
or policies have been publicly disseminated by the staff of the SEC or such
positions or policies represent the prevailing views of the staff of the SEC.
Such "Plan of Distribution" section shall also expressly permit, to the
extent permitted by applicable policies and regulations of the SEC, the use
of the Prospectus by all Persons subject to the prospectus delivery
requirements of the Securities Act, including, to the extent permitted by
applicable policies and regulations of the SEC, all Participating
Broker-Dealers, and include a statement describing the means by which
Participating Broker-Dealers may resell the Exchange Notes in compliance with
the Securities Act.
The Company and the Subsidiary Guarantors shall use their best
efforts to keep the Exchange Offer Registration Statement effective and to
amend and supplement the Prospectus contained therein in order to permit such
Prospectus to be lawfully delivered by all Persons subject to the prospectus
delivery requirements of the Securities Act for such period of time as is
necessary to comply with applicable law in connection with any resale of the
Exchange Notes covered thereby; provided, however, that such period shall not
exceed 60 days after such
5
Exchange Offer Registration Statement is declared effective (or such longer
period if extended pursuant to the last paragraph of Section 5 hereof) (the
"Applicable Period").
If, prior to consummation of the Exchange Offer, any of the Initial
Purchasers holds any Notes acquired by it that have, or that are reasonably
likely to be determined to have, the status of an unsold allotment in an
initial distribution, the Company and the Subsidiary Guarantors upon the
request of any such Holder shall simultaneously with the delivery of the
Exchange Notes in the Exchange Offer, issue and deliver to any such Holder,
in exchange (the "Private Exchange") for such Notes held by any such Holder,
a like principal amount of notes (the "Private Exchange Notes") of the
Company that are identical in all material respects to the Exchange Notes
except for the placement of a restrictive legend on such Private Exchange
Notes. The Private Exchange Notes shall be issued pursuant to the same
indenture as the Exchange Notes and, if possible, bear the same CUSIP number
as the Exchange Notes.
(b) In connection with the Exchange Offer, the Company and the
Subsidiary Guarantors shall:
(1) mail, or cause to be mailed, to each Holder
entitled to participate in the Exchange Offer a copy of the Prospectus
forming part of the Exchange Offer Registration Statement, together
with an appropriate letter of transmittal and related documents;
(2) keep the Exchange Offer open for not less than 30
days after the date that notice of the Exchange Offer is mailed to
Holders (or longer if required by applicable law);
(3) utilize the services of a depository for the
Exchange Offer with an address in (i) the Borough of Manhattan, The
City of New York or (ii) The City of Baltimore;
(4) permit Holders to withdraw tendered Notes at any
time prior to the close of business, New York time, on the last
business day on which the Exchange Offer shall remain open; and
(5) otherwise comply in all material respects with
all applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Company and the Subsidiary Guarantors shall:
(a) accept for exchange all Registrable Notes validly
tendered and not validly withdrawn pursuant to the Exchange Offer and
the Private Exchange, if any;
(b) deliver to the Trustee for cancellation all
Registrable Notes so accepted for exchange; and
6
(c) cause the Trustee to authenticate and deliver
promptly to each Holder of Notes, Exchange Notes or Private Exchange
Notes, as the case may be, equal in principal amount to the Notes of
such Holder so accepted for exchange.
The Exchange Offer and the Private Exchange shall not be subject to
any conditions, other than that (i) the Exchange Offer or Private Exchange,
as the case may be, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (ii) no action or proceeding shall
have been instituted or threatened in any court or by any governmental agency
which might materially impair the ability of the Company and the Subsidiary
Guarantors to proceed with the Exchange Offer or the Private Exchange, and no
material adverse development shall have occurred in any existing action or
proceeding with respect to the Company and the Subsidiary Guarantors and
(iii) all governmental approvals shall have been obtained, which approvals
the Company and the Subsidiary Guarantors deem necessary for the consummation
of the Exchange Offer or Private Exchange.
The Exchange Notes and the Private Exchange Notes 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 TIA or is exempt from such qualification and shall provide that the
Exchange Notes shall not be subject to the transfer restrictions set forth in
the Indenture. The Indenture or such indenture shall provide that the
Exchange Notes, the Private Exchange Notes and the Notes shall vote and
consent together on all matters as one class and that none of the Exchange
Notes, the Private Exchange Notes or the Notes will have the right to vote or
consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing
interpretations of the staff of the SEC, the Company and the Subsidiary
Guarantors are not permitted to effect an Exchange Offer, (ii) the Exchange
Offer is not consummated within 180 days of the Issue Date, (iii) any holder
of Private Exchange Notes so requests in writing to the Company within 60
days after the consummation of the Exchange Offer, or (iv) in the case of any
Holder that participates in the Exchange Offer, such Holder does not receive
Exchange Notes on the date of the exchange that may be sold without
restriction under state and federal securities laws (other than due solely to
the status of such Holder as an affiliate of the Company and the Subsidiary
Guarantors within the meaning of the Securities Act), then in the case of
each of clauses (i) to and including (iv) of this sentence, the Company and
the Subsidiary Guarantors shall promptly deliver to the Holders and the
Trustee written notice thereof (the "Shelf Notice") and shall file a Shelf
Registration pursuant to Section 3 hereof.
3. Shelf Registration
If at any time a Shelf Notice is delivered as contemplated by
Section 2(c) hereof, then:
(a) Shelf Registration. The Company and the Subsidiary Guarantors
shall file with the SEC a Registration Statement for an offering to be made
on a continuous basis pursuant to Rule 415 covering all of the Registrable
Notes not exchanged in the Exchange Offer, Private Exchange Notes and
Exchange Notes as to which Section 2(c)(iv) is applicable (the "Initial Shelf
Registration"). The Company and the Subsidiary Guarantors shall use their
best efforts to file
7
with the SEC the Initial Shelf Registration on or before the applicable
Filing Date. The Initial Shelf Registration shall be on Form S-1 or another
appropriate form permitting registration of such Registrable Notes for resale
by Holders in the manner or manners designated by them (including, without
limitation, one or more underwritten offerings). The Company and the
Subsidiary Guarantors shall not permit any securities other than the
Registrable Notes to be included in the Initial Shelf Registration or any
Subsequent Shelf Registration (as defined below).
The Company and the Subsidiary Guarantors shall use their best
efforts to cause the Initial Shelf Registration to be declared effective
under the Securities Act on or prior to the Effectiveness Date and to keep
the Initial Shelf Registration continuously effective under the Securities
Act until the date which is two years from the Issue Date (the "Effectiveness
Period"), or such shorter period ending when (i) all Registrable Notes
covered by the Initial Shelf Registration have been sold in the manner set
forth and as contemplated in the Initial Shelf Registration or (ii) a
Subsequent Shelf Registration covering all of the Registrable Notes covered
by and not sold under the Initial Shelf Registration or an earlier Subsequent
Shelf Registration has been declared effective under the Securities Act;
provided, however, that the Effectiveness Period in respect of the Initial
Shelf Registration shall be extended to the extent required to permit dealers
to comply with the applicable prospectus delivery requirements of Rule 174
under the Securities Act and as otherwise provided herein.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be effective for
any reason at any time during the Effectiveness Period (other than because of
the sale of all of the securities registered thereunder), the Company and the
Subsidiary Guarantors shall use their best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any
event shall within 30 days of such cessation of effectiveness amend the
Initial Shelf Registration in a manner to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional "shelf"
Registration Statement pursuant to Rule 415 covering all of the Registrable
Notes covered by and not sold under the Initial Shelf Registration or an
earlier Subsequent Shelf Registration (each, a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the Company and
the Subsidiary Guarantors shall use their best efforts to cause the
Subsequent Shelf Registration to be declared effective under the Securities
Act as soon as practicable after such filing and to keep such Subsequent
Shelf Registration continuously effective for a period equal to the number of
days in the Effectiveness Period less the aggregate number of days during
which the Initial Shelf Registration or any Subsequent Shelf Registration was
previously continuously effective. As used herein the term "Shelf
Registration" means the Initial Shelf Registration and any Subsequent Shelf
Registration.
(c) Supplements and Amendments. The Company and the Subsidiary
Guarantors shall promptly supplement and amend any Shelf Registration if
required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration, if required by the
Securities Act, or if reasonably requested by the Holders of a majority in
aggregate principal amount of the Registrable Notes covered by such
Registration Statement or by any underwriter of such Registrable Notes.
8
4. Additional Interest
The Company and the Initial Purchasers agree that the Holders will
suffer damages if the Company and the Subsidiary Guarantors fail to fulfill
their obligations under Section 2 or Section 3 hereof and that it would not
be feasible to ascertain the extent of such damages with precision.
Accordingly, the Company agrees to pay, as liquidated damages, additional
interest (the "Additional Interest") in respect of the Notes under the
circumstances and to the extent set forth below (each of which shall be given
independent effect):
(i) if (A) neither the Exchange Offer Registration Statement
nor the Initial Shelf Registration has been filed on or prior
to the applicable Filing Date or (B) notwithstanding that the
Company and the Subsidiary Guarantors have consummated or will
consummate the Exchange Offer, the Company and the Subsidiary
Guarantors are required to file a Shelf Registration and such
Shelf Registration is not filed on or prior to the Filing Date
applicable thereto, then, commencing on the day after any such
Filing Date, Additional Interest shall accrue on the principal
amount of the Notes at a rate of 0.50% per annum for the first
90 days immediately following each such Filing Date, and such
Additional Interest rate shall increase by an additional 0.50%
per annum at the beginning of each subsequent 90-day period;
or
(ii) if (A) neither the Exchange Offer Registration Statement
nor the Initial Shelf Registration is declared effective by
the SEC on or prior to 135 days after the Issue Date (with
respect to the Exchange Offer Registration Statement) or 60
days after the applicable Filing Date (with respect to the
Initial Shelf Registration Statement) or (B) notwithstanding
that the Company and the Subsidiary Guarantors have
consummated or will consummate the Exchange Offer, the Company
and the Subsidiary Guarantors are required to file a Shelf
Registration and such Shelf Registration is not declared
effective by the SEC on or prior to the Effectiveness Date in
respect of such Shelf Registration, then, commencing on the
day after such Effectiveness Date, Additional Interest shall
accrue on the principal amount of the Notes at a rate of 0.50%
per annum for the first 90 days immediately following the day
after such Effectiveness Date, and such Additional Interest
rate shall increase by an additional 0.50% per annum at the
beginning of each subsequent 90-day period; or
(iii) if (A) the Company and the Subsidiary Guarantors have
not exchanged Exchange Notes for all Notes validly tendered in
accordance with the terms of the Exchange Offer on or prior to
the 45th day after the date on which the Exchange Offer
Registration Statement relating thereto was declared effective
or (B) if applicable, a Shelf Registration has been declared
effective and such Shelf Registration ceases to be effective
at any time during the Effectiveness Period, then Additional
Interest shall accrue on the principal amount of the Notes at
a rate of 0.50% per annum for the first 90 days commencing on
(x) the 46th day after such effective date, in the case of (A)
above, or (y) the day such Shelf Registration ceases to be
effective in the case of (B) above, such Additional Interest
rate
9
increasing by an additional 0.50% per annum at the beginning
of each such subsequent 90-day period;
provided, however, that the Additional Interest rate on the Notes may not
exceed at any one time in the aggregate 1.00% per annum; provided, further,
however, that (1) upon the filing of the applicable Exchange Offer
Registration Statement or the applicable Shelf Registration as required
hereunder (in the case of clause (i) above of this Section 4), (2) upon the
effectiveness of the Exchange Offer Registration Statement or the applicable
Shelf Registration Statement as required hereunder (in the case of clause
(ii) of this Section 4), or (3) upon the exchange of the applicable Exchange
Notes for all Notes tendered (in the case of clause (iii)(A) of this Section
4), or upon the effectiveness of the applicable Shelf Registration Statement
which had ceased to remain effective (in the case of (iii)(B) of this Section
4), Additional Interest on the Notes in respect of which such events relate
as a result of such clause (or the relevant subclause thereof), as the case
may be, shall cease to accrue.
The Company shall notify the Trustee within three business days
after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Any amounts of
Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this
Section 4 will be payable in cash semiannually on each March 15 and September
15 (to the holders of record on the March 1 and September 1 immediately
preceding such dates), commencing with the first such date occurring after
any such Additional Interest commences to accrue. The amount of Additional
Interest will be determined by multiplying the applicable Additional Interest
rate by the principal amount of the Registrable Notes, multiplied by a
fraction, the numerator of which is the number of days such Additional
Interest rate was applicable during such period (determined on the basis of a
360-day year comprised of twelve 30-day months and, in the case of a partial
month, the actual number of days elapsed), and the denominator of which is
360.
5. Registration Procedures
In connection with the filing of any Registration Statement pursuant
to Sections 2 or 3 hereof, the Company and the Subsidiary Guarantors shall
effect such registrations to permit the sale of the securities covered
thereby in accordance with the intended method or methods of disposition
thereof, and pursuant thereto and in connection with any Registration
Statement filed by the Company and the Subsidiary Guarantors hereunder the
Company and the Subsidiary Guarantors shall:
(a) Prepare and file with the SEC prior to the applicable Filing
Date, a Registration Statement or Registration Statements as prescribed by
Sections 2 or 3 hereof, and use their best efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; provided, however, that, if (1) such filing is pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period relating thereto to the extent
reasonably practicable, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Company and the
Subsidiary Guarantors shall furnish to and afford the Holders of the
Registrable Notes covered by such Registration Statement or each
10
such Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriters, if any, up to three business days to review copies of
all such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in each
case at least five days prior to such filing, or such later date as is
reasonable under the circumstances). The Company and the Subsidiary
Guarantors shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto if the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such Registration
Statement, or any such Participating Broker-Dealer, as the case may be, their
counsel, or the managing underwriters, if any, shall reasonably object;
provided, however, such objection shall not be due to adverse market
conditions.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement or Exchange Offer
Registration Statement, as the case may be, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness Period or
the Applicable Period, as the case may be; cause the related Prospectus to be
supplemented by any Prospectus supplement required by applicable law, and as
so supplemented to be filed pursuant to Rule 424 (or any similar provisions
then in force) promulgated under the Securities Act; and comply with the
provisions of the Securities Act and the Exchange Act applicable to each of
them with respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so supplemented
and with respect to the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period relating thereto from whom the
Company has received written notice that it will be a Participating dDealer
in the Exchange Offer, notify the selling Holders of Registrable Notes, or
each such Participating Broker-Dealer, as the case may be, their counsel and
the managing underwriters, if any, promptly, and confirm such notice in
writing, (i) when a Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to a Registration Statement or
any post-effective amendment, when the same has become effective under the
Securities Act (including in such notice a written statement that any Holder
may, upon request, obtain, at the sole expense of the Company and the
Subsidiary Guarantors, one conformed copy of such Registration Statement or
post-effective amendment including financial statements and schedules,
documents incorporated or deemed to be incorporated by reference and
exhibits), (ii) of the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or the initiation of any
proceedings for that purpose, (iii) if at any time when a prospectus is
required by the Securities Act to be delivered in connection with sales of
the Registrable Notes or resales of Exchange Notes by Participating
Broker-Dealers the representations and warranties of the Company contained in
any agreement (including any underwriting agreement) contemplated by Section
5(m) hereof cease to be true and correct in all material respects, (iv) of
the receipt by the Company and the Subsidiary Guarantors of any notification
with respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable Notes or
the Exchange Notes to be sold by any Participating Broker-Dealer for offer
11
or sale in any jurisdiction, or the initiation or threatening of any proceeding
for such purpose, (v) of the happening of any event, the existence of any
condition or any information becoming known that makes any statement made in
such Registration Statement or related Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material respect
or that requires the making of any changes in or amendments or supplements to
such Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and (vi) of the Company's and the Subsidiary Guarantors'
determination that a post-effective amendment to a Registration Statement would
be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, use their reasonable best
efforts to prevent the issuance of any order suspending the effectiveness of
a Registration Statement or of any order preventing or suspending the use of
a Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Notes or the Exchange Notes to be
sold by any Participating Broker-Dealer, for sale in any jurisdiction, and,
if any such order is issued, to use its reasonable best efforts to obtain the
withdrawal of any such order at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
reasonably requested by the managing underwriter or underwriters (if any),
the Holders of a majority in aggregate principal amount of the Registrable
Notes being sold in connection with an underwritten offering or any
Participating Broker-Dealer, (i) as promptly as practicable incorporate in a
prospectus supplement or post-effective amendment such information as the
managing underwriter or underwriters (if any), such Holders, any
Participating Broker-Dealer or counsel for any of them reasonably request to
be included therein, (ii) make all required filings of such prospectus
supplement or such post-effective amendment as soon as legally required after
the Company and the Subsidiary Guarantors have received notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, furnish to each selling Holder
of Registrable Notes and to each such Participating Broker-Dealer who so
requests and to their respective counsel and each managing underwriter, if
any, at the sole expense of the Company, one conformed copy of the
Registration Statement or Registration Statements and each post-effective
amendment thereto, including financial statements and schedules, and, if
requested, all documents incorporated or deemed to be incorporated therein by
reference and all exhibits.
12
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, deliver to each selling Holder
of Registrable Notes, or each such Participating Broker-Dealer, as the case
may be, their respective counsel, and the underwriters, if any, at the sole
expense of the Company and the Subsidiary Guarantors, as many copies of the
Prospectus or Prospectuses (including each form of preliminary prospectus)
and each amendment or supplement thereto and any documents incorporated by
reference therein as such Persons may reasonably request; and, subject to the
last paragraph of this Section 5, the Company and the Subsidiary Guarantors
hereby consent to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and dealers (if any), in connection with the offering and
sale of the Registrable Notes covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Offer Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, use their best efforts to register or qualify,
and to cooperate with the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, the managing underwriter or
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any selling Holder, Participating Broker-Dealer, or the managing underwriter
or underwriters reasonably request in writing; provided, however, that where
Exchange Notes held by Participating Broker-Dealers or Registrable Notes are
offered other than through an underwritten offering, the Company and the
Subsidiary Guarantors agree to cause their counsel to perform Blue Sky
investigations and file registrations and qualifications required to be filed
pursuant to this Section 5(h), keep each such registration or qualification
(or exemption therefrom) effective during the period such Registration
Statement is required to be kept effective and do any and all other acts or
things reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Exchange Notes held by Participating Broker-Dealers or
the Registrable Notes covered by the applicable Registration Statement;
provided, however, that the Company and the Subsidiary Guarantors shall not
be required to (A) qualify generally to do business in any jurisdiction where
they are not then so qualified, (B) take any action that would subject them
to general service of process in any such jurisdiction where they are not
then so subject or (C) subject themselves to taxation in excess of a nominal
dollar amount in any such jurisdiction where they are not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company; and enable such
Registrable Notes to be in such denominations and registered in such names as
the managing underwriter or underwriters, if any, or Holders may request.
13
(j) Subject to the proviso in (h) above, use their best efforts to
cause the Registrable Notes covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be reasonably necessary to enable the seller or sellers
thereof or the underwriter or underwriters, if any, to consummate the
disposition of such Registrable Notes, except as may be required solely as a
consequence of the nature of such selling Holder's business, in which case
the Company and the Subsidiary Guarantors will cooperate in all reasonable
respects with the filing of such Registration Statement and the granting of
such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, upon the occurrence of any event
contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as
practicable prepare and (subject to Section 5(a) hereof) file with the SEC,
at the sole expense of the Company and the Subsidiary Guarantors, a
supplement or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed
to be incorporated therein by reference, or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable Notes
being sold thereunder or to the purchasers of the Exchange Notes to whom such
Prospectus will be delivered by a Participating Broker-Dealer, any such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with certificates
for the Registrable Notes in a form eligible for deposit with The Depository
Trust Company and (ii) provide a CUSIP number for the Registrable Notes.
(m) In connection with any underwritten offering of Registrable
Notes pursuant to a Shelf Registration, use their best efforts to enter into
an underwriting agreement as is customary in underwritten offerings of debt
securities similar to the Notes in form and substance reasonably satisfactory
to the Company and the Subsidiary Guarantors and take all such other actions
as are reasonably requested by the managing underwriter or underwriters in
order to expedite or facilitate the registration or the disposition of such
Registrable Notes, provided, however, that the Company and the Subsidiary
Guarantors shall have no liability for any compensation or reimbursement of
expenses due to any underwriter or other party assisting in the disposition
of such Registrable Notes or other expenses incurred by the Holder thereof in
connection with such disposition other than agreed upon expenses, and in such
connection, whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten offering and, in such
connection, (i) to the extent possible make such representations and
warranties to, and covenants with, the underwriters with respect to the
business of the Company, the Subsidiary Guarantors and the other subsidiaries
of the Company (including any acquired business, properties or entity, if
applicable) and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each case,
as are customarily made by the Company and the Subsidiary Guarantors to
underwriters in underwritten offerings of debt securities similar to the
Notes, and
14
confirm the same in writing if and when reasonably requested; (ii) obtain the
written opinions of counsel to the Company and the Subsidiary Guarantors and
written updates thereof in form, scope and substance reasonably satisfactory
to the managing underwriter or underwriters, addressed to the underwriters
covering the matters customarily covered in opinions reasonably requested in
underwritten offerings; (iii) to the extent permitted by the professional
standards governing the accounting profession at the time, use its best
efforts to obtain "cold comfort" letters and updates thereof in form, scope
and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent public accountants of the Company and the
Subsidiary Guarantors (and, if necessary, any other independent public
accountants of the Company, any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial data
are, or are required to be, included or incorporated by reference in the
Registration Statement), addressed to each of the underwriters, such letters
to be in customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with underwritten offerings of debt
securities similar to the Notes as permitted by the Statement on Auditing
Standards No. 72; and (iv) if an underwriting agreement is entered into, the
same shall contain indemnification provisions and procedures comparable to
those set forth in Section 7 hereof (or such other provisions and procedures
acceptable to Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement and the managing
underwriter or underwriters or agents, if any). The above shall be done at
each closing under such underwriting agreement, or as and to the extent
required thereunder.
(n) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, make available for inspection by
any selling Holder of such Registrable Notes being sold, or each such
Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes, if any, and any
attorney, accountant or other agent retained by any such selling Holder or
each such Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept, during
reasonable business hours, all financial and other records, pertinent
corporate documents and instruments of the Company, the Subsidiary Guarantors
and any other subsidiaries of the Company (collectively, the "Records") as
shall be reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and employees
of the Company, the Subsidiary Guarantors and any of the other subsidiaries
of the Company to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement and Prospectus. Each
Inspector shall agree in writing that it will keep the Records confidential
and that it will not disclose any of the Records that the Company and the
Subsidiary Guarantors determine, in good faith, to be confidential and notify
the Inspectors in writing are confidential and that it will use such
information obtained pursuant to this provision only in connection with the
transaction for which the information was obtained unless (i) the release of
such Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, or (ii) the information in such Records has been made
generally available to the public; provided, however, that prior notice shall
be provided as soon as practicable to the Company and the Subsidiary
Guarantors of the potential disclosure of any information by such Inspector
pursuant to clause (i) of this sentence to permit the Company and the
Subsidiary Guarantors to obtain a protective
15
order (or waive the provisions of this paragraph (n)) and that such Inspector
shall take such actions as are reasonably necessary to protect the
confidentiality of such information (if practicable).
(o) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof, as the case may be, to be
qualified under the TIA not later than the effective date of the first
Registration Statement relating to the Registrable Notes; and in connection
therewith, cooperate with the trustee under any such indenture and the
Holders of the Registrable Notes, to effect such changes to such indenture as
may be required for such indenture to be so qualified in accordance with the
terms of the TIA; and execute, and use their best efforts to cause such
trustee to execute, all documents as may be required to effect such changes,
and all other forms and documents required to be filed with the SEC to enable
such indenture to be so qualified in a timely manner.
(p) Use their best efforts to comply with all applicable rules and
regulations of the SEC and make generally available to their security holders
earnings statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 60 days after the end of any fiscal quarter
(or 120 days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Notes are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of the
Company and the Subsidiary Guarantors after the effective date of a
Registration Statement, which statements shall cover said 12-month periods.
(q) Upon consummation of the Exchange Offer or a Private Exchange,
obtain an opinion of counsel to the Company and the Subsidiary Guarantors, in
a form customary for underwritten transactions, addressed to the Trustee for
the benefit of all Holders of Registrable Notes participating in the Exchange
Offer or the Private Exchange, as the case may be, that the Exchange Notes or
Private Exchange Notes, as the case may be, and the related indenture
constitute legal, valid and binding obligations of the Company and the
Subsidiary Guarantors, enforceable against it in accordance with their
respective terms, subject to customary exceptions and qualifications.
(r) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the Company
and the Subsidiary Guarantors (or to such other Person as directed by the
Company and the Subsidiary Guarantors) in exchange for the Exchange Notes or
the Private Exchange Notes, as the case may be, the Company shall xxxx, or
cause to be marked, on such Registrable Notes that such Registrable Notes are
being canceled in exchange for the Exchange Notes or the Private Exchange
Notes, as the case may be; in no event shall such Registrable Notes be marked
as paid or otherwise satisfied.
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in
connection with any filings required to be made with the National Association
of Securities Dealers, Inc. (the "NASD").
16
(t) Use their best efforts to take all other steps reasonably
necessary to effect the registration of the Exchange Notes and/or Registrable
Notes covered by a Registration Statement contemplated hereby.
The Company and the Subsidiary Guarantors may require each seller of
Registrable Notes as to which any registration is being effected to furnish
to the Company and the Subsidiary Guarantors such information regarding such
seller and the distribution of such Registrable Notes as the Company and the
Subsidiary Guarantors may, from time to time, reasonably request. The Company
and the Subsidiary Guarantors may exclude from such registration the
Registrable Notes of any seller so long as such seller fails to furnish such
information within a reasonable time after receiving such request. Each
seller as to which any Shelf Registration is being effected agrees to furnish
promptly to the Company and the Subsidiary Guarantors all information
required to be disclosed in order to make the information previously
furnished to the Company and the Subsidiary Guarantors by such seller not
materially misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company and the Subsidiary
Guarantors, then such Holder shall have the right to require (i) the
insertion therein of language, in form and substance reasonably satisfactory
to such Holder, to the effect that the holding by such Holder of such
securities is not to be construed as a recommendation by such Holder of the
investment quality of the securities covered thereby and that such holding
does not imply that such Holder will assist in meeting any future financial
requirements of the Company and the Subsidiary Guarantors, or (ii) in the
event that such reference to such Holder by name or otherwise is not required
by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such Holder in any amendment or supplement to
the Registration Statement filed or prepared subsequent to the time that such
reference ceases to be required.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by its acquisition of such Registrable Notes or Exchange
Notes to be sold by such Participating Broker-Dealer, as the case may be,
that, upon actual receipt of any notice from the Company and the Subsidiary
Guarantors of the happening of any event of the kind described in Section
5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such Holder will forthwith
discontinue disposition of such Registrable Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by such
Holder or Participating Broker-Dealer, as the case may be, until such
Holder's or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof, or
until it is advised in writing (the "Advice") by the Company and the
Subsidiary Guarantors that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto. In
the event that the Company and the Subsidiary Guarantors shall give any such
notice, the Applicable Period shall be extended by the number of days during
such periods from and including the date of the giving of such notice to and
including the date when each seller of Registrable Notes covered by such
Registration Statement or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof or (y)
the Advice.
17
6. Registration Expenses
All fees and expenses incident to the performance of or compliance
with this Agreement by the Company and the Subsidiary Guarantors (other than
any underwriting discounts or commissions and fees and expenses of any legal
counsel for underwriters) shall be borne by the Company and the Subsidiary
Guarantors whether or not the Exchange Offer Registration Statement or any
Shelf Registration is filed or becomes effective or the Exchange Offer is
consummated, including, without limitation, (i) all registration and filing
fees (including, without limitation, (A) fees with respect to filings
required to be made with the NASD in connection with an underwritten offering
and (B) fees and expenses of compliance with state securities or Blue Sky
laws (including, without limitation, fees and disbursements of counsel in
connection with Blue Sky qualifications of the Registrable Notes or Exchange
Notes and determination of the eligibility of the Registrable Notes or
Exchange Notes for investment under the laws of such jurisdictions (x) where
the holders of Registrable Notes are located, in the case of the Exchange
Notes, or (y) as provided in Section 5(h) hereof, in the case of Registrable
Notes or Exchange Notes to be sold by a Participating Broker-Dealer during
the Applicable Period)), (ii) printing expenses, including, without
limitation, expenses of printing certificates for Registrable Notes or
Exchange Notes in a form eligible for deposit with The Depository Trust
Company and of printing prospectuses if the printing of prospectuses is
requested by the managing underwriter or underwriters, if any, by the Holders
of a majority in aggregate principal amount of the Registrable Notes included
in any Registration Statement or in respect of Registrable Notes or Exchange
Notes to be sold by any Participating Broker-Dealer during the Applicable
Period, as the case may be, (iii) messenger, telephone and delivery expenses,
(iv) fees and disbursements of counsel for the Company and the Subsidiary
Guarantors and reasonable fees and disbursements of one special counsel
satisfactory to the Company and the Subsidiary Guarantors for all of the
sellers of Registrable Notes (exclusive of any counsel retained pursuant to
Section 7 hereof) (provided, that such fees for special counsel shall not
exceed $10,000 in the aggregate for the Exchange Offer and $10,000 in the
aggregate for the Shelf Registration Statements in the aggregate), (v) fees
and disbursements of all independent certified public accountants referred to
in Section 5(m)(iii) hereof (including, without limitation, the expenses of
any special audit and "cold comfort" letters required by or incident to such
performance), (vi) Securities Act liability insurance, if the Company and the
Subsidiary Guarantors desire such insurance, (vii) fees and expenses of all
other Persons retained by the Company and the Subsidiary Guarantors, (viii)
internal expenses of the Company and the Subsidiary Guarantors (including,
without limitation, all salaries and expenses of officers and employees of
the Company and the Subsidiary Guarantors performing legal or accounting
duties), (ix) the expense of any annual audit, (x) any fees and expenses
incurred in connection with the listing of the securities to be registered on
any securities exchange, and the obtaining of a rating of the securities, in
each case, if applicable, and (xi) the expenses relating to printing, word
processing and distributing all Registration Statements, underwriting
agreements, indentures and any other documents necessary in order to comply
with this Agreement. Notwithstanding anything in this Section 6 to the
contrary, the Company and the Subsidiary Guarantors shall not be required to
pay (a) the fees and expenses of any Underwriter or of legal counsel for any
Underwriter, other than a "qualified independent underwriter" (acting solely
in such capacity) or (b) any underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such
Registrable Notes.
18
7. Indemnification
The Company and the Subsidiary Guarantors agree to indemnify and
hold harmless each Holder of Registrable Notes and each Participating
Broker-Dealer selling Exchange Notes during the Applicable Period, the
affiliates, officers, directors, representatives, employees and agents of
each such Person, and each Person, if any, who controls any such Person
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act (each, a "Participant"), from and against any and all
losses, claims, damages, judgments, liabilities and expenses (including,
without limitation, the reasonable legal fees and other expenses actually
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if the Company and the Subsidiary Guarantors shall have
furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by, arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the case of the
Prospectus in light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Participant furnished to the Company in writing by such Participant
expressly for use therein.
Each Participant agrees, severally and not jointly, to indemnify and
hold harmless the Company and the Subsidiary Guarantors, their affiliates,
officers, directors, representatives, employees and agents of the Company and
the Subsidiary Guarantors and each Person who controls the Company and the
Subsidiary Guarantors within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act to the same extent (but on a several, and
not joint, basis) as the foregoing indemnity from the Company and the
Subsidiary Guarantors to each Participant, but only with reference to
information relating to such Participant furnished to the Company and the
Subsidiary Guarantors in writing by such Participant expressly for use in any
Registration Statement or Prospectus, any amendment or supplement thereto, or
any preliminary prospectus. The liability of any Participant under this
paragraph shall in no event exceed the proceeds received by such Participant
from sales of Registrable Notes or Exchange Notes giving rise to such
obligations.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any Person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such Person (the "Indemnified
Person") shall promptly notify the Persons against whom such indemnity may be
sought (the "Indemnifying Persons") in writing, and the Indemnifying Persons,
upon request of the Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person
and any others the Indemnifying Persons may reasonably designate in such
proceeding and shall pay the fees and expenses actually incurred by such
counsel related to such proceeding; provided, however, that the failure to so
notify the Indemnifying Persons will not relieve it from any liability under
paragraph (a) or (b) above unless and to the extent such failure results in
the loss or compromise by the indemnifying party of substantial rights and
defenses. In any such proceeding, any Indemnified Person shall have
19
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Persons and the Indemnified Person shall have mutually agreed to
the contrary, (ii) the Indemnifying Persons shall have failed within a
reasonable period of time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both any Indemnifying Person and
the Indemnified Person or any affiliate thereof and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying
Persons shall not, in connection with such proceeding or separate but
substantially similar related proceeding in the same jurisdiction arising out
of the same general allegations, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Participants and such control
Persons of Participants shall be designated in writing by Participants who
sold a majority in interest of Registrable Notes and Exchange Notes sold by
all such Participants and shall be reasonably acceptable to the Company and
the Subsidiary Guarantors, and any such separate firm for the Company and the
Subsidiary Guarantors, their affiliates, officers, directors,
representatives, employees and agents and such control Persons of the Company
and the Subsidiary Guarantors shall be designated in writing by the Company
and the Subsidiary Guarantors and shall be reasonably acceptable to the
Indemnified Persons.
The Indemnifying Persons shall not be liable for any settlement of
any proceeding effected without its prior written consent, but if settled
with such consent or if there be a final non-appealable judgment for the
plaintiff for which the Indemnified Person is entitled to indemnification
pursuant to this Agreement, each of the Indemnifying Persons agrees to
indemnify and hold harmless each Indemnified Person from and against any loss
or liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested
an Indemnifying Person to reimburse the Indemnified Person for reasonable
fees and expenses incurred by counsel as contemplated by the third sentence
of the preceding paragraph, the Indemnifying Person 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 45 days after
receipt by such Indemnifying Person of the aforesaid request and (ii) such
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement; provided,
however, that the Indemnifying Person shall not be liable for any settlement
effected without its consent pursuant to this sentence if the Indemnifying
Party is contesting such request for reimbursement.
No Indemnifying Person shall, without the prior written consent of
the Indemnified Persons (which consent shall not be unreasonably withheld or
delayed), effect any settlement or compromise of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party, or indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement (A) includes an unconditional written release
of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject
matter of such proceeding and (B) does not include any statement as to an
admission of fault, culpability or failure to act by or on behalf of such
Indemnified Person.
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If the indemnification provided for in the first and second
paragraphs of this Section 7 is for any reason unavailable to, or
insufficient to hold harmless, an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraphs, in lieu of indemnifying such
Indemnified Person thereunder and in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities
in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Person or Persons on the one hand and the Indemnified Person or
Persons on the other in connection with the statements or omissions or
alleged 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 Company and the
Subsidiary Guarantors on the one hand or such Participant or such other
Indemnified Person, as the case may be, on the other, the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances.
The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Participants were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages, judgments, liabilities and expenses referred to
in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any reasonable legal or other expenses
actually incurred by such Indemnified Person in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall a Participant be required to contribute any
amount in excess of the amount by which proceeds received by such Participant
from sales of Registrable Notes or Exchange Notes, as the case may be,
exceeds the amount of any damages that such Participant has otherwise been
required to pay or has paid 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.
Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the Indemnifying Party to the Indemnified Party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company and the Subsidiary Guarantors
set forth in this Agreement shall remain operative and in full force and
effect, regardless of (i) any investigation made by or on behalf of any
Holder or any person who controls a Holder, the Company and the Subsidiary
Guarantors, their directors, officers, employees or agents or any person
controlling the Company and the Subsidiary Guarantors, and (ii) any
termination of this Agreement.
21
The indemnity and contribution agreements contained in this Section
7 will be in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
8. Rules 144 and 144A
The Company and the Subsidiary Guarantors covenant and agree that so
long as any Registrable Notes remain outstanding they will file the reports
required to be filed by them (if required) under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder in a
timely manner in accordance with the requirements of the Securities Act and
the Exchange Act and, if at any time the Company and the Subsidiary
Guarantors are not required to file such reports, the Company and the
Subsidiary Guarantors will, upon the request of any Holder or beneficial
owner of Registrable Notes, make available such information necessary to
permit sales pursuant to Rule 144A under the Securities Act. The Company and
the Subsidiary Guarantors further covenant and agree, for so long as any
Registrable Notes remain outstanding that they will take such further action
as any Holder of Registrable Notes may reasonably request, all to the extent
required from time to time to enable such holder to sell Registrable Notes
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144(k) and Rule 144A under the Securities
Act, as such Rules may be amended from time to time, or (b) any similar rule
or regulation hereafter adopted by the SEC.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf Registration
are to be sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in aggregate principal amount of
such Registrable Notes included in such offering and shall be reasonably
acceptable to the Company and the Subsidiary Guarantors.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and
(b) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements.
10. Miscellaneous
(a) No Inconsistent Agreements. The Company and the Subsidiary
Guarantors have not, as of the date hereof, and the Company and the
Subsidiary Guarantors shall not, after the date of this Agreement, enter into
any agreement with respect to any of their securities that is inconsistent
with the rights granted to the Holders of Registrable Notes in this Agreement
or otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Company's and the Subsidiary
Guarantors' other issued and outstanding securities under any such
agreements. The Company and the Subsidiary Guarantors will not enter into any
22
agreement with respect to any of their securities which will grant to any
Person piggy-back registration rights with respect to any Registration
Statement.
(b) Adjustments Affecting Registrable Notes. The Company and the
Subsidiary Guarantors shall not, directly or indirectly, take any action with
respect to the Registrable Notes as a class that would adversely affect the
ability of the Holders of Registrable Notes to include such Registrable Notes
in a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, otherwise than with the prior
written consent of (I) the Company and the Subsidiary Guarantors and (II)(A)
the Holders of not less than a majority in aggregate principal amount of the
then outstanding Registrable Notes and (B) in circumstances that would
adversely affect the Participating Broker-Dealers, the Participating
Broker-Dealers holding not less than a majority in aggregate principal amount
of the Exchange Notes held by all Participating Broker-Dealers.
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Notes whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders of
Registrable Notes may be given by Holders of at least a majority in aggregate
principal amount of the Registrable Notes being sold pursuant to such
Registration Statement.
(d) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee)
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air courier or facsimile:
(i) if to a Holder of the Registrable Notes or any
Participating Broker-Dealer, at the most current address of
such Holder or Participating Broker-Dealer, as the case may
be, set forth on the records of the registrar under the
Indenture.
(ii) if to the Company and the Subsidiary Guarantors, at the
address as follows:
SITEL Corporation
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
All such notices and communications shall be deemed to have been
duly given (i) when delivered by hand, if personally delivered; (ii) five
business days after being deposited in the mail, postage prepaid, if mailed;
(iii) one business day after being timely delivered to a next-day air
courier; and (iv) when receipt is acknowledged by the addressee, if sent by
facsimile.
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Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties hereto, the Holders and the Participating Broker-Dealers.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT
TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the
parties hereto shall use their best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would
have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
(j) Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes
is required hereunder, Registrable Notes held by the Company or its
affiliates (as such term is defined in Rule 405 under the Securities Act)
shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
(k) Third-Party Beneficiaries. Holders of Registrable Notes and
Participating Broker-Dealers are intended third-party beneficiaries of this
Agreement, and this Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained
24
herein and therein and any and all prior oral or written agreements,
representations, or warranties, contracts, understandings, correspondence,
conversations and memoranda between the Holders on the one hand and the
Company and the Subsidiary Guarantors on the other, or between or among any
agents, representatives, parents, subsidiaries, affiliates, predecessors in
interest or successors in interest with respect to the subject matter hereof
and thereof are merged herein and replaced hereby.
(m) Subsidiary Guarantor a Party. Immediately upon any subsidiary of
the Company becoming a Guarantor (as defined in the Indenture) the Company
shall cause such subsidiary to become a party hereto as a guarantor with
respect to the obligations of the Company hereunder by executing and
delivering to the Initial Purchasers a counterpart hereof.
25
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
SITEL CORPORATION
By:
-------------------------------------
Xxxxxx X. Xxxxxx
President
SITEL International, Inc., as
Subsidiary Guarantor
By:
-------------------------------------
Xxxxxx X. Xxxxxx
Vice President
SITEL Insurance Services, Inc., as
Subsidiary Guarantor
By:
-------------------------------------
Xxxxxx X. Xxxxxx
Vice President
Financial Insurance Services, Inc., as
Subsidiary Guarantor
By:
-------------------------------------
Xxxxxx X. Xxxxxx
Vice President
SITEL Support Services, Inc., as
Subsidiary Guarantor
By:
-------------------------------------
Xxxxxx X. Xxxxxx
Vice President
26
SITEL Investments, Inc., as
Subsidiary Guarantor
By:
-------------------------------------
Xxxxxx X. Xxxxxx
Vice President
SITEL Software, Inc., as
Subsidiary Guarantor
By:
-------------------------------------
Xxxxxx X. Xxxxxx
Vice President
National Action Financial Services, Inc.,
as Subsidiary Guarantor
By:
-------------------------------------
Xxxxxx X. Xxxxxx
Vice President
SITEL Technical Services, Inc., as
Subsidiary Guarantor
By:
-------------------------------------
Xxxxxx X. Xxxxxx
Vice President
SITEL Insurance Marketing Services, Inc.,
as Subsidiary Guarantor
By:
-------------------------------------
Xxxxxx X. Xxxxxx
Vice President
27
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
BT ALEX. XXXXX INCORPORATED
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
SBC WARBURG DILLON READ INC.
as Initial Purchasers
By: BT Alex. Xxxxx Incorporated
By:
-------------------------------
Name:
Title:
28
