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EXHIBIT 4.3
L & W Draft No. 3, 4/13/97
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GREYHOUND LINES, INC.
Up to 2,760,000 Shares
8 1/2% Convertible Exchange Preferred Stock
REGISTRATION RIGHTS AGREEMENT
Dated as of April 16, 1997
BEAR, XXXXXXX & CO. INC.
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This Registration Rights Agreement (this "Agreement") is made and
entered into as of April 16, 1997 by and between Greyhound Lines, Inc., a
Delaware corporation (the "Company"), and Bear, Xxxxxxx & Co. Inc. (the
"Initial Purchaser"), who has agreed to purchase up to 2,760,000 shares (the
"Shares") of the Company's 8 1/2% Convertible Exchangeable Preferred Stock (the
"Preferred Stock") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
April 11, 1997 (the "Purchase Agreement"), by and between the Company and the
Initial Purchaser. In order to induce the Initial Purchaser to purchase the
Shares, the Company has agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchaser set forth in Section 3 of the Purchase
Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Broker-Dealer: Any broker or dealer registered under the Exchange
Act.
Certificate of Designations: The Certificate of Designations, dated
as of April __, 1997 and filed with the Secretary of State of the State of
Delaware, pursuant to which the Preferred Stock is to be issued.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Common Stock: The common stock, par value $0.01 per share, of the
Company.
Effectiveness Target Date: As defined in Section 4.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Debenture Indenture: As defined in the Certificate of
Designations.
Exchange Debentures: As defined in the Certificate of Designations.
Exempt Resales: The transactions in which the Initial Purchaser
proposes to sell the Series A Notes (i) to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act, (ii) to certain
institutional "accredited investors," as such term is defined in Rule
501(a)(1), (2), (3) and (7) of Regulation D under the Act ("Accredited
Institutions") and (iii) outside the United States to certain non-U.S. Persons
meeting the requirements of Rule 904 under the Act.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 7(a) hereof.
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NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
Initial Purchaser: As defined in the preamble hereto.
Record Holder: With respect to any dividend payment date relating to
the Preferred Stock, each Person who is a Holder of Shares on the record date
with respect to the dividend payment date on which such dividend payment date
shall occur. With respect to any interest payment date relating to the
Exchange Debentures, each Person who is a Holder of Exchange Debentures on the
record date with respect to the interest payment date on which such interest
payment date shall occur.
Registration Default: As defined in Section 4 hereof.
Registration Statement: Any registration statement of the Company
relating to the registration for resale of Transfer Restricted Notes pursuant
to the Shelf Registration Statement, which is filed pursuant to the provisions
of this Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and
all exhibits and material incorporated by reference therein.
Shelf Filing Deadline: As defined in Section 3 hereof.
Shelf Registration Statement: As defined in Section 3 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Exchange Debenture Indenture.
Transfer Restricted Securities: Each Share, Exchange Debenture and
share of Common Stock issuable upon conversion of the Preferred Stock or the
Exchange Debentures until (i) the date on which such Share, Exchange Debenture
or share of Common Stock, as the case may be, has been effectively registered
under the Act and disposed of in accordance with the Shelf Registration
Statement or (ii) the date on which such Share, Exchange Debenture, or share of
Common Stock, as the case may be, is distributed to the public pursuant to Rule
144 under the Act or may be distributed to the public pursuant to Rule 144(k)
under the Securities Act.
Trustee: The trustee for the Exchange Debentures under the Exchange
Debenture Indenture.
Underwritten Registration or Underwritten Offering: A registration
in which securities of the Company are sold to an underwriter for reoffering to
the public.
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SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed
to be a holder of Transfer Restricted Securities (each, a "Holder") whenever
such Person owns Transfer Restricted Securities of record.
SECTION 3. SHELF REGISTRATION
(a) Shelf Registration. The Company shall use its reasonable best
efforts to:
(x) cause to be filed a shelf registration statement pursuant to
Rule 415 under the Act (the "Shelf Registration Statement") on or prior to
45 days after the consummation of the offering of the Preferred Stock (the
"Shelf Filing Deadline"), which Shelf Registration Statement shall provide
for resales of all Transfer Restricted Securities the Holders of which
shall have provided the information required pursuant to Section 3(b)
hereof; and
(y) cause such Shelf Registration Statement to be declared
effective by the Commission on or before the 75th day after the Shelf
Filing Deadline.
The Company shall use its reasonable best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 5(a) and (b) hereof to the extent
necessary to ensure that it is available for resales of Transfer Restricted
Securities by the Holders of Transfer Restricted Securities entitled to the
benefit of this Section 3(a), and to ensure that it conforms with the
requirements of this Agreement, the Act and the policies, rules and regulations
of the Commission as announced from time to time, for a period of at least two
years following the Closing Date or, if earlier, until the Shelf Registration
Statement terminates when all Transfer Restricted Securities covered by such
Shelf Registration Statement have been sold; provided, that the Company shall
have the option of suspending the effectiveness of the Shelf Registration
Statement for one period of up to 60 consecutive days per calendar year if the
Board of Directors of the Company determines that compliance with the
disclosure obligations necessary to maintain the effectiveness of the Shelf
Registration Statement at such time would have a material adverse effect on the
Company (each such period, a "Suspension Period").
(b) Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 business days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein, including the information set forth in the
questionnaire included as Annex B to the Offering Memorandum. No Holder of
Transfer Restricted Securities shall be entitled to Liquidated Damages pursuant
to Section 4 hereof unless and until such Holder shall have used its best
efforts to provide all such reasonably requested information. Each Holder as
to which any Shelf Registration Statement is being effected agrees to furnish
promptly to the
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Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading.
SECTION 4. LIQUIDATED DAMAGES
If (i) the Company fails to file the Shelf Registration Statement
with the Commission on or prior to the Shelf Filing Deadline, (ii) the Shelf
Registration Statement has not been declared effective by the Commission on or
prior to the 75th day after the Shelf Filing Deadline (the "Effectiveness
Target Date"), whether or not the Company has breached any obligation to use
its reasonable best efforts to cause the Shelf Registration Statement to be
declared effective, or (iii) the Shelf Registration Statement is filed and
declared effective but shall thereafter cease to be effective or fail to be
usable for any period of 10 consecutive days or for any 20 days in any 180-day
period in connection with resales of Transfer Restricted Securities other than
as a result of a Suspension Period (each such event referred to in clauses (i)
through (iii), a "Registration Default"), the Company hereby agrees to pay to
each Holder of Transfer Restricted Securities (other than shares of Common
Stock) liquidated damages ("Liquidated Damages") at an annual rate of 0.25% of
the liquidation preference of the Preferred Stock constituting Transfer
Restricted Securities, or 0.25% of the principal amount of the Exchange
Debentures constituting Transfer Restricted Securities, which shall accrue from
the date of the Registration Default until such Registration Default is cured.
All accrued Liquidated Damages shall be paid to Record Holders by the Company
by wire transfer of immediately available funds or by federal funds check on
each dividend payment date with respect to the Preferred Stock and as provided
in the Certificate of Designations, and each interest payment date with respect
to the Exchange Debentures. Following the cure of all Registration Defaults
relating to any particular Transfer Restricted Securities, the accrual of
Liquidated Damages with respect to such Transfer Restricted Securities will
cease.
All obligations of the Company set forth in the preceding paragraph
that are outstanding with respect to any Transfer Restricted Security at the
time such security ceases to be a Transfer Restricted Security shall survive
until such time as all such obligations with respect to such security shall
have been satisfied in full.
SECTION 5. REGISTRATION PROCEDURES
(a) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall comply with all the provisions of
Section 5(b) below and shall use its reasonable best efforts to effect such
registration to permit the sale of the Transfer Restricted Securities being
sold in accordance with the intended method or methods of distribution thereof
and, pursuant thereto, the Company will prepare and file with the Commission in
accordance with Section 3(a) hereof a Shelf Registration Statement relating to
the registration on any appropriate form under the Act, which form shall be
available for the sale of the Transfer Restricted Securities in accordance with
the intended method or methods of distribution thereof.
(b) General Provisions. In connection with the Shelf Registration
Statement and any Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities, the Company shall:
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(i) use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective and provide all requisite
financial statements (including, if required by the Act or any regulation
thereunder, financial statements of any Subsidiaries) for the period
specified in Section 3 of this Agreement; upon the occurrence of any event
that would cause the Shelf Registration Statement or the Prospectus
contained therein (A) to contain a material misstatement or omission or
(B) not to be effective and usable for resale of Transfer Restricted
Securities during the period required by this Agreement, the Company shall
file promptly an appropriate amendment to the Shelf Registration
Statement, in the case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), use its reasonable
best efforts to cause such amendment to be declared effective and the
Shelf Registration Statement and the related Prospectus to become usable
for their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep the Shelf Registration Statement effective for the
applicable period set forth in Section 3 hereof, or such shorter period as
will terminate when all Transfer Restricted Securities covered by the
Shelf Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Act, and to comply fully with
the applicable provisions of Rules 424 and 430A under the Act in a timely
manner; and comply with the provisions of the Act with respect to the
disposition of all securities covered by the Shelf Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in the Shelf
Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the Shelf
Registration Statement or any post-effective amendment thereto, when the
same has become effective, (B) of any request by the Commission for
amendments to the Shelf Registration Statement or amendments or
supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement under the
Act or of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or sale
in any jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the happening of
any event that makes any statement of a material fact made in the Shelf
Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Shelf
Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Shelf Registration
Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or exemption
from qualification of the Transfer Restricted Securities under state
securities or Blue Sky laws, the Company shall use its reasonable best
efforts to obtain the withdrawal or lifting of such order at the earliest
possible time;
(iv) furnish to each of the selling Holders and each of the
underwriter(s) (all of whom shall be required to acknowledge the
confidentiality of the information therein, if requested by the Company
prior to being furnished the same), if any, before filing with the
Commission, copies of the Shelf Registration Statement or any Prospectus
included therein or any amendments or
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supplements to the Shelf Registration Statement or Prospectus (but
excluding any documents incorporated by reference as a result of the
Company's periodic reporting requirements under the Exchange Act), and the
Company shall not file the Shelf Registration Statement or Prospectus or
any amendment or supplement to the Shelf Registration Statement or
Prospectus (excluding all such documents incorporated by reference as a
result of the Company's periodic reporting requirements under the Exchange
Act) to which a selling Holder of Transfer Restricted Securities covered
by the Shelf Registration Statement or the underwriter(s), if any, shall
reasonably object within five business days after the receipt thereof. A
selling Holder or underwriter, if any, shall be deemed to have reasonably
objected to such filing if the Shelf Registration Statement, amendment,
Prospectus or supplement, as applicable, as proposed to be filed, contains
a material misstatement or omission;
(v) promptly following the filing of any document that is to be
incorporated by reference into the Shelf Registration Statement or
Prospectus, provide copies of such document to the selling Holders and to
the underwriter(s), if any, make the Company's representatives available
for discussion of such document and other customary due diligence matters,
and include such information in such document prior to the filing thereof
as such selling Holders or underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for inspection by the
selling Holders, any underwriter participating in any disposition pursuant
to the Shelf Registration Statement, and any attorney or accountant
retained by such selling Holders or any of the underwriter(s), all
financial and other records, pertinent corporate documents and properties
of the Company and cause the Company's officers, directors and employees
to supply all information reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with the Shelf
Registration Statement subsequent to the filing thereof and prior to its
effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in the Shelf Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities, information with
respect to the number of shares or principal amount of Transfer Restricted
Securities, as the case may be, being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the offering of
the Transfer Restricted Securities to be sold in such offering; and make
all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment;
(viii) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the Shelf
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);
(ix) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; the Company hereby
consents to the use of the Prospectus and any amendment or supplement
thereto by each of the selling Holders and each of the underwriter(s), if
any, in connection with the offering and the sale of the Transfer
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Restricted Securities covered by the Prospectus or any amendment or
supplement thereto; provided that such use of the Prospectus and any
amendment or supplement thereto and such offering and sale conforms to the
Plan of Distribution set forth in the Prospectus and complies with the
terms of this Agreement and all applicable laws and regulations
thereunder;
(x) in the event of an Underwritten Registration, enter into
such customary agreements (including an underwriting agreement), and make
such customary representations and warranties, and take all such other
customary actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities pursuant
to the Shelf Registration Statement contemplated by this Agreement, all to
such extent as may be requested by any Holder of Transfer Restricted
Securities or underwriter in connection with any sale or resale pursuant
to the Shelf Registration Statement contemplated by this Agreement; and
whether or not an underwriting agreement is entered into and whether or
not the registration is an Underwritten Registration, the Company shall:
(A) Except in the case of an Underwritten Registration, furnish
to each selling Holder upon the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated the date of effectiveness of the
Shelf Registration Statement, signed on behalf of the Company
by two senior officers, one of whom must be its Chief Financial
Officer, confirming, as of such date, the matters set forth in
paragraphs (a), (c) and (d) of Section 8 of the Purchase
Agreement with respect to the transactions contemplated by the
Shelf Registration Statement;
(2) an opinion, dated the date of effectiveness of the
Shelf Registration Statement, of counsel for the Company,
covering the matters set forth in Exhibits A and B of the
Purchase Agreement with respect to the transactions contemplated
by the Shelf Registration Statement, and in any event including
a statement to the effect that such counsel has participated in
conferences with officers and other representatives of the
Company and representatives of the independent public
accountants for the Company in connection with the preparation
of such Registration Statement and the related Prospectus and
have considered the matters required to be stated therein and
the statements contained therein, although such counsel has not
independently verified the accuracy, completeness or fairness of
such statements; and that such counsel advises that, on the
basis of the foregoing (relying as to materiality to a large
extent upon facts provided to such counsel by officers and other
representatives of the Company and without independent check or
verification), no facts came to such counsel's attention that
caused such counsel to believe that the Registration Statement,
at the time such Registration Statement or any post-effective
amendment thereto became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus
contained in such Registration Statement as of its date
contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes no
responsibility for, and has not independently verified, the
accuracy, completeness or fairness of the financial statements,
notes and schedules and other financial data included in any
Registration Statement contemplated by this Agreement or the
related Prospectus; and
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(3) a customary comfort letter, dated as of the date of
effectiveness of the Shelf Registration Statement, from the
Company's independent accountants if such comfort letter shall
be issuable to the selling Holders in accordance with the
relevant accounting industry pronouncements, in the customary
form and covering matters of the type customarily covered in
comfort letters by underwriters in connection with primary
underwritten offerings, and affirming the matters set forth in
the comfort letters delivered pursuant to Section 8(h) of the
Purchase Agreement, without exception; and
(B) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
pursuant to this clause (x), if any.
If at any time the representations and warranties of the Company and
the Guarantors contemplated in clause (A)(1) above cease to be true and
correct, the Company shall so advise the Initial Purchaser and the
underwriter(s), if any, and each selling Holder promptly and, if requested
by such Persons, shall confirm such advice in writing;
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the securities
or Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s) may request and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement; provided, however, that the Company shall not be
required to register or qualify as a foreign corporation where it is not
now so qualified or to take any action that would subject it to the
service of process in suits or to taxation, other than as to matters and
transactions relating to the Shelf Registration Statement, in any
jurisdiction where it is not now so subject;
(xii) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Securities to be sold and
not bearing any restrictive legends; and enable such Transfer Restricted
Securities to be in such denominations and registered in such names as the
Holders or the underwriter(s), if any, may reasonably request at least two
business days prior to any sale of Transfer Restricted Securities made by
such underwriter(s);
(xiii) if any fact or event contemplated by clause (b)(iii)(D)
above shall exist or have occurred, prepare a supplement or post-effective
amendment to the Shelf Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make
the statements therein not misleading;
(xiv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Shelf Registration
Statement and provide printed certificates for the Transfer Restricted
Securities which are in a form eligible for deposit with the Depository
Trust Company;
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(xv) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by
any underwriter (including any "qualified independent underwriter") that
is required to be retained in accordance with the rules and regulations of
the NASD;
(xvi) otherwise use their reasonable best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to its security holders, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) for the twelve-month period (A) commencing at
the end of any fiscal quarter in which Transfer Restricted Securities are
sold to underwriters in a firm or best efforts Underwritten Offering or
(B) if not sold to underwriters in such an offering, beginning with the
first month of the Company's first fiscal quarter commencing after the
effective date of the Shelf Registration Statement;
(xvii) if the Preferred Stock is exchanged for the Exchange
Debentures, cause the Exchange Debenture Indenture to be qualified under
the TIA not later than the later of the effective date of the Shelf
Registration Statement required by this Agreement or the date of exchange,
and, in connection therewith, cooperate with the Trustee and the Holders
of Exchange Debentures to effect such changes to the Exchange Debenture
Indenture as may be required for such Exchange Debenture Indenture to be
so qualified in accordance with the terms of the TIA; and execute and use
their reasonable best efforts to cause the Trustee to execute, all
documents that may be required to effect such changes and all other forms
and documents required to be filed with the Commission to enable such
Exchange Debenture Indenture to be so qualified in a timely manner;
(xviii) cause all Transfer Restricted Securities covered by the
Shelf Registration Statement to be listed on each securities exchange on
which the Preferred Stock is then listed if requested by the Holders of a
majority in aggregate number of shares of Preferred Stock or Common Stock,
or in aggregate principal amount of Exchange Debentures, as the case may
be, or the managing underwriter(s), if any; and
(xix) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of Section
13 and Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 5(b)(iii)(D) hereof, such Holder will keep
such notice confidential and forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the Shelf Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(b)(xiii) hereof, or until it is advised in writing
(the "Advice") by the Company that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus. If so directed by the Company,
each Holder will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Transfer Restricted Securities that was current at the
time of receipt of such notice. In the event the Company shall give any such
notice, the time period regarding the effectiveness of the Shelf Registration
Statement set forth in Section 3 hereof shall be extended by the number of days
during the period from and including the date of the giving of such notice
pursuant to Section 5(b)(iii)(D) hereof to and including the date when each
selling Holder covered by the Shelf Registration Statement shall have received
the
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copies of the supplemented or amended Prospectus contemplated by Section
5(b)(xiii) hereof or shall have received the Advice.
SECTION 6. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether the Shelf Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including
filings made by any Initial Purchaser or Holder with the NASD (and, if
applicable, the fees and expenses of any "qualified independent underwriter"
and its counsel that may be required by the rules and regulations of the
NASD)); (ii) all fees and expenses of compliance with federal securities and
state Blue Sky or securities laws; (iii) all fees and disbursements of counsel
for the Company and, subject to Section 7(b) below, the Holders of Transfer
Restricted Securities; (iv) all application and filing fees in connection with
listing the Transfer Restricted Securities on a national securities exchange or
automated quotation system, if any; and (v) all fees and disbursements of
independent certified public accountants of the Company (including the expenses
of any special audit and comfort letters required by or incident to such
performance).
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company. The Company shall not be responsible for any other
expenses or costs, including but not limited to, commissions, fees and
discounts of underwriters, brokers, dealers and agents.
(b) In connection with the Shelf Registration Statement required by
this Agreement, the Company will reimburse the Initial Purchaser and the
Holders of Transfer Restricted Securities being registered pursuant to the
Shelf Registration Statement for the reasonable fees and disbursements of not
more than one counsel, who shall be Xxxxxx & Xxxxxxx or such other counsel as
may be chosen by the Holders of a majority in number of shares or principal
amount, as the case may be, of the Transfer Restricted Securities for whose
benefit the Shelf Registration Statement is being prepared.
SECTION 7. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless (i) each
Holder, (ii) each person, if any, who controls any Holder within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act and (iii) the
respective officers, directors, partners, employees, representatives and agents
of any Holder or any controlling person (any person referred to in clauses (i),
(ii) or (iii) may hereinafter be referred to as an "Indemnified Holder"), to
the fullest extent lawful, from and against any and all losses, liabilities,
claims, damages and expenses whatsoever (including but not limited to
reasonable attorneys' fees and any and all reasonable expenses whatsoever
incurred in investigating, preparing or defending against any investigation or
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Shelf
Registration Statement or Prospectus, or in any supplement thereto or amendment
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
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necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Company
will not be liable in any such case to the extent, but only to the extent, that
any such loss, liability, claim, damage or expense arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the any of the Holders
expressly for use therein; and provided further, however, that the foregoing
indemnity shall not inure to the benefit of any Indemnified Holder from whom
the person asserting such loss, liability, claim, damage or expense (A)
received a Prospectus or an amendment or supplement thereto in violation of the
last paragraph of Section 6 above if such violation caused such loss,
liability, claim, damage or expense or (B) purchased any Transfer Restricted
Security if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Indemnified Holder to such person at or
prior to the written confirmation of the sale of such Transfer Restricted
Security to such person and if the Prospectus (as so amended or supplemented
would have cured the defect giving rise to such loss, liability, claim damage,
or expense). This indemnity agreement will be in addition to any liability
which the Company may otherwise have, including under this Agreement.
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Company and each person, if
any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act and each of their respective officers,
directors, employers, partners, representatives and agents to the same extent
as the foregoing indemnity from the Company to each of the Indemnified Holders,
but only with respect to information relating to such Holder furnished in
writing by such Holder for use in the Shelf Registration Statement, or in any
amendment thereof or supplement thereto; provided, however, that in no case
shall any selling Holder be liable or responsible for any amount in excess of
proceeds received by such Holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation. This indemnity will be in
addition to any liability which the Holders may otherwise have, including under
this Agreement.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 6 or otherwise except to the
extent that it has been prejudiced in any material respect by such failure).
In case any such action is brought against any indemnified party, and it
notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent it may elect
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume and control the
defense thereof with counsel reasonably satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by the indemnifying parties in connection with the defense of such
action, (ii) the indemnifying parties shall not have employed counsel to take
charge of the defense of such action within a reasonable time after notice of
commencement of the action, or (iii) such indemnified party or parties shall
have been advised by counsel that representation of such indemnified party and
any indemnifying parties by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) because of actual or
potential interests between them (in which case the indemnifying party or
parties
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shall not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees and expenses of
counsel shall be borne by the indemnifying parties; provided, however, that the
indemnifying party under subsection (a) or (b) above shall only be liable for
the legal expenses of one counsel (in addition to any local counsel) for all
indemnified parties. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement
of any claim or action effected without its prior written consent; provided
that such consent was not unreasonably withheld.
SECTION 8. CONTRIBUTION
In order to provide for contribution in circumstances in which the
indemnification provided for in Section 8 is for any reason held to be
unenforceable against the Company or is insufficient to hold harmless a party
indemnified thereunder, the Company, on the one hand, and the Holders on the
other hand, shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Company, any
contribution received by the Company from persons, other than a Holder, who may
also be liable for contribution, including persons who control the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act) to which the Company or any Holder may be subject, in such proportion as
is appropriate to reflect the relative benefits received by the Company, on one
hand, and each Holder, on the other hand, from the offering of the Preferred
Stock or, if such allocation is not permitted by applicable law or
indemnification is not available as a result of the indemnifying party not
having received notice as provided in Section 7, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but
also the relative fault of the Company, on one hand, and the Holders on the
other hand, in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, on one hand, and the Holders, on the other hand, shall be deemed to be
in the same proportion as (i) the total proceeds from the offering of Preferred
Stock (net of discounts but before deducting expenses) received by the Company
and (ii) the discounts and commissions received by the Initial Purchaser,
respectively, in each case as set forth in the table on the cover page of the
Offering Memorandum. The relative fault of the Company, on one hand, and of
each Holder, on the other hand, 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 or such Holder and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and each Holder of Transfer Restricted
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation or by any
other method of allocation which does not take into account the equitable
considerations referred to above. Notwithstanding the provisions of this
Section 8, (i) in no case shall any Holder be required to contribute any amount
in excess of the amount by which the proceeds received by such Holder upon the
sale of the Registrable Securities giving rise to such obligation exceeds the
amount of any damages which such Holder has otherwise been required to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8, (A) each person, if any, who controls the Initial Purchaser
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act and (B) the respective officers, directors, partners, employees,
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representatives and agents of such Holder or any controlling person shall have
the same rights to contribution as the Initial Purchaser, and each person, if
any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act shall have the same rights to contribution as
the Company, subject in each case to clauses (i) and (ii) of this Section 8.
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 8, notify such party or parties from whom contribution may
be sought, but the failure to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation
it or they may have under this Section 8 or otherwise. No party shall be
liable for contribution with respect to any action or claim settled without its
prior written consent; provided that such written consent was not unreasonably
withheld.
SECTION 9. RULE 144A
The Company hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Act in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
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 reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Company.
SECTION 12. MISCELLANEOUS
(a) Remedies. The Company agrees that monetary damages (including
the Liquidated Damages contemplated hereby) would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate, provided, that with respect
to the Preferred Stock and the Exchange Debentures, the Liquidated Damages
contemplated hereby shall be the exclusive remedy for any breach of Section 3
of this Agreement.
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(b) No Inconsistent Agreements. The Company shall not, on or after
the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders 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 securities
under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless the Company has
obtained the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder of Preferred Stock or Common Stock, at the
address set forth on the stock register of the Company, with a copy to the
transfer agent, and if to a Holder of Exchange Debentures, at the address
set forth on the records of the Registrar under the Exchange Debenture
Indenture, with a copy to the Registrar under the Exchange Debenture
Indenture; and
(ii) if to the Company:
Greyhound Lines, Inc.
00000 Xxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
With a copy to:
Weil, Gotshal & Xxxxxx, LLP
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
If and when the Preferred Stock is exchanged for the Exchange
Debentures, then copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address specified in the Exchange Debenture Indenture.
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(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, including without limitation and without the need for an express
assignment, the successors and assigns of subsequent Holders of Transfer
Restricted Securities; provided, however, that this Agreement shall not inure
to the benefit of or be binding upon a successor or assign of a Holder unless
and to the extent such successor or assign acquired Transfer Restricted Notes
from such Holder.
(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, WITHOUT REGARD
TO THE CONFLICT OF LAW RULES THEREOF.
(i) 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.
[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
GREYHOUND LINES, INC.
By:
--------------------------------------
Name:
Title:
BEAR, XXXXXXX & CO. INC.
By:
------------------------------------
Name:
Title:
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