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EXHIBIT 10.8
REGISTRATION RIGHTS AGREEMENT
DATED AS OF JANUARY 27, 1998
BY AND AMONG
LIBERTY GROUP PUBLISHING, INC.,
AS ISSUER
AND
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
CITICORP SECURITIES, INC.
BT ALEX. ▇▇▇▇▇
▇▇▇▇▇ SECURITIES INC.,
AS INITIAL PURCHASERS
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of January 27, 1998, among LIBERTY GROUP PUBLISHING, INC., a Delaware
corporation (the "Company"), and ▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇ SECURITIES
CORPORATION, CITICORP SECURITIES, INC., BT ALEX. ▇▇▇▇▇ and ▇▇▇▇▇ SECURITIES
INC. (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated January
15, 1998, among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of $89,000,000 aggregate principal amount at maturity of 11 5/8%
Series A Senior Discount Debentures due 2009 (the "Series A Debentures"). In
order to induce the Initial Purchasers to enter into the Purchase Agreement,
the Company has agreed to provide to the Initial Purchasers and their
respective direct and indirect transferees, among other things, the
registration rights for the Series A Debentures set forth in this Agreement.
The execution of this Agreement is a condition to the closing of the
transactions contemplated by the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the following
meanings (and, unless otherwise indicated, capitalized terms used herein
without definition shall have the respective meanings ascribed to them by the
Purchase Agreement):
Applicable Period: See Section 2(b) hereof.
Company: See the introductory paragraphs to this Agreement.
controlling person: See Section 7 hereof.
DTC: See Section 5(i) hereof.
Effectiveness Period: See Section 3(a) hereof.
Effectiveness Target Date: See Section 4(a)(ii) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2(a) hereof.
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Exchange Offer Registration Statement: See Section 2(a) hereof.
Holder: Any holder of Transfer Restricted Securities.
indemnified party: See Section 7 hereof.
Indemnified Person: See Section 7 hereof.
indemnifying person: See Section 7 hereof.
Indenture: The Indenture, dated as of the date hereof, by and between the
Company and State Street Bank and Trust Company, as trustee (the "Trustee"),
pursuant to which the Series A Debentures and Series B Debentures are being
issued, as amended or supplemented from time to time in accordance with the
terms thereof.
Initial Purchasers: See the introductory paragraphs to this Agreement.
Inspectors: See Section 5(m) hereof.
Issue Date: As defined in the Offering Memorandum.
Liquidated Damages: See Section 4(a) hereof.
NASD: See Section 5(q) hereof.
Offering Memorandum: The final Offering Memorandum dated January 15, 1998
as supplemented by the Supplement To Offering Memorandum dated January 20,
1998, related to the sale of the Series A Debentures.
Participating Broker-Dealer: See Section 2(b) hereof.
Person or person: An individual, trustee, corporation, partnership, joint
stock company, trust, unincorporated association, union, business association,
limited liability company, limited liability partnership, firm or other legal
entity.
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), as amended or supplemented by any
prospectus supplement, with respect to the offering of any portion of the
Series B Debentures and/or the Transfer Restricted Securities (as applicable),
covered by such Registration Statement, and all other amendments and
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supplements to the Prospectus, including 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 to this Agreement.
Records: See Section 5(m) hereof.
Registration Default: See Section 4(a) hereof.
Registration Statement: The Exchange Offer Registration Statement or a
registration statement of the Company that otherwise covers any of the Transfer
Restricted Securities pursuant to the provisions of this Agreement, 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 pursuant to the Securities Act, as
currently in effect, as such rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
Rule 144A: Rule 144A promulgated pursuant to the Securities Act, as
currently in effect, as such rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated pursuant to 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.
Series A Debentures: See the introductory paragraphs to this Agreement.
Series B Debentures: See Section 2(a) hereof.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration Statement: See Section 3(a) hereof.
TIA: The Trust Indenture Act of 1939, as amended, and the rules and
regulations of the SEC promulgated thereunder.
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Transfer Restricted Securities: The Series A Debentures upon original
issuance thereof and at all times subsequent thereto, until in the case of any
such Series A Debentures, the earliest to occur of, the date on which (i) a
Registration Statement covering such has been declared effective by the SEC and
such Series A Debentures have been disposed of in accordance with such
effective Registration Statement, (ii) such Series A Debentures are sold in
compliance with Rule 144 or are eligible for sale under Rule 144(k) or (iii)
such Series A Debentures cease to be outstanding (including, without
limitation, upon an exchange of such Series A Debentures for Series B
Debentures in the Exchange Offer).
Trustee: See the definition of Indenture.
Underwritten registration or underwritten offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to
the public.
2. Exchange Offer
(a) The Company agrees to file with the SEC within 60 days after the
Issue Date a registration statement under the Securities Act with respect to an
offer to exchange (the "Exchange Offer") any and all of the Transfer Restricted
Securities for a like aggregate principal amount of debt securities of the
Company (the "Series B Debentures"), which Series B Debentures will be (i)
substantially identical in all material respects to the Series A Debentures,
except that such Series B Debentures will not contain terms with respect to
transfer restrictions, and (ii) entitled to the benefits of the Indenture or a
trust indenture which is identical to the Indenture (other than such changes to
the Indenture or any such identical trust indenture as are necessary to comply
with any requirements of the SEC to effect or maintain the qualification
thereof under the TIA), and which, in either case, has been qualified under the
TIA, and (iii) registered pursuant to an effective Registration Statement in
compliance with the Securities Act. The Exchange Offer will be registered
pursuant to the Securities Act on an appropriate form of Registration Statement
(the "Exchange Offer Registration Statement"), and will comply with all
applicable tender offer rules and regulations promulgated pursuant to the
Exchange Act and shall be duly registered or qualified pursuant to all
applicable state securities or Blue Sky laws, except as would subject the
Company to general taxation or service of process where it is not currently
subject. The Exchange Offer shall not be subject to any condition, other than
that the Exchange Offer does not violate any applicable law, policy or
interpretation of the staff of the SEC. No securities shall be included in the
Exchange Offer Registration Statement other than the Series B Debentures. The
Company agrees (x) to use its reasonable best efforts to cause such Exchange
Offer Registration Statement to be declared effective under the Securities Act
within 135 days after the Issue Date; (y) to keep the Exchange Offer open for
not less than 30 days (or such longer period required by applicable law) after
the date that the notice of the Exchange Offer referred to below is mailed to
Holders; and (z) to use its reasonable best efforts to consummate the Exchange
Offer within 45 days after the Effectiveness Target Date. As promptly as
practicable after the Exchange Offer Registration
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Statement is declared effective, the Company will commence the offer of Series
B Debentures in exchange for properly tendered Series A Debentures. For each
Series A Debenture validly tendered pursuant to the Exchange Offer, the holder
of such Series A Debenture will receive a Series B Debenture having a principal
amount at maturity equal to that of the tendered Series A Debenture.
Each Holder who participates in the Exchange Offer will be required to
represent that any Series B Debentures 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 Series B Debentures, and that such Holder is not an "affiliate" of
the Company within the meaning of Rule 405 of the Securities Act (or that if it
is such an affiliate, it will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable). Each
Holder that is not a Participating Broker-Dealer will be required to represent
that it is not engaged in, and does not intend to engage in, the distribution
of the Series B Debentures. Each Holder that (i) is a Participating
Broker-Dealer and (ii) will receive Series B Debentures for its own account in
exchange for the Transfer Restricted Securities that it acquired as the result
of market-making or other trading activities will be required to acknowledge
that it will deliver a Prospectus as required by law in connection with any
resale of such Series B Debentures. The Company shall allow Participating
Broker-Dealers and other persons, if any, subject to prospectus delivery
requirements to use the Prospectus included in the Exchange Offer Registration
Statement in connection with the resale of the Series B Debentures. Upon
consummation of the Exchange Offer in accordance with this Agreement, the
Company shall have no further obligation to register Transfer Restricted
Securities pursuant to Section 3 of this Agreement.
(b) The Company shall include within the Exchange Offer
Registration Statement a section entitled "Plan of Distribution," reasonably
acceptable to the Initial Purchasers, 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 acquired Series A
Debentures as the result of market-making activities or other trading
activities (and not directly from the Company) and is the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Series B Debentures received
by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer").
Such "Plan of Distribution" section shall also allow the use of the Prospectus
by all persons subject to the prospectus delivery requirements of the
Securities Act, including all Participating Broker-Dealers, and include a
statement describing the means by which Participating Broker-Dealers may
resell the Series B Debentures.
The Company shall use its reasonable best efforts to keep the Exchange
Offer Registration Statement effective under the Securities Act and to amend
and supplement the Prospectus contained therein, in order to permit such
Prospectus to be lawfully delivered by
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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 and
the policies, rules and regulations of the SEC as announced from time to time
in connection with any resale of the Series B Debentures provided that such
period shall not exceed 180 days from the consummation of the Exchange Offer
(or such longer period if extended pursuant to the last paragraph of Section 5
hereof) (the "Applicable Period").
In connection with the Exchange Offer, the Company shall:
(i) mail as promptly as practicable to each Holder a copy of
the Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and
related documents;
(ii) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York; and
(iii) permit Holders to withdraw tendered Series A Debentures
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.
As soon as practicable after the close of the Exchange Offer,
the Company shall:
(i) accept for exchange all Series A Debentures tendered
and not validly withdrawn pursuant to the Exchange Offer;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Series A Debentures so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver
promptly to each Holder of Series A Debentures, Series B Debentures
equal in principal amount to the Series A Debentures of such Holder so
accepted for exchange.
(c) If (1) prior to the consummation of the
Exchange Offer, any change in law or in the applicable interpretations of the
staff of the SEC do not permit the Company to effect the Exchange Offer, or (2)
for any other reason the Exchange Offer is not consummated within 180 days of
the Issue Date, then the Company shall as promptly as practicable deliver to
the Holders and the Trustee written notice thereof (the "Shelf Notice"), and
the Company shall file a Registration Statement pursuant to Section 3 hereof.
Following the delivery of a Shelf Notice to the Holders of Transfer Restricted
Securities, the Company shall not have any further obligation to conduct the
Exchange Offer pursuant to this Section 2.
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3. Shelf Registration
If the Company is required to deliver a Shelf Notice as
contemplated by Section 2(c) hereof, then:
(a) Shelf Registration. The Company shall prepare and file
with the SEC, within 45 days after such filing obligation arises, a
Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Transfer Restricted Securities (the
"Shelf Registration Statement"). The Shelf Registration Statement shall be on
Form S-1 or another appropriate form permitting registration of the Transfer
Restricted Securities for resale by the Holders in the manner or manners
designated by the Holders of a majority in aggregate principal amount of the
outstanding Transfer Restricted Securities (including, without limitation, an
underwritten offering). The Company shall not permit any securities other than
the Transfer Restricted Securities to be included in the Shelf Registration
Statement. The Company shall use its reasonable best efforts to cause the
Shelf Registration Statement to be declared effective pursuant to the
Securities Act on or prior to 135 days after such obligation arises and to keep
the Shelf Registration Statement continuously effective under the Securities
Act until the earlier of (i) the date which is 24 months following the Issue
Date (or such longer period if extended pursuant to the last paragraph of
Section 5 hereof), (ii) the date that all Transfer Restricted Securities
covered by the Shelf Registration Statement have been sold in the manner set
forth and as contemplated in the Shelf Registration Statement or (iii) the date
that there ceases to be outstanding any Transfer Restricted Securities (the
"Effectiveness Period").
(b) Supplements and Amendments. The Company shall use its
reasonable best efforts to keep the Shelf Registration Statements continuously
effective during the Effectiveness Period by supplementing and amending the
Shelf Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration Statement, or if reasonably requested in writing timely received
setting forth the reasons for such request by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities covered by
such Registration Statement or by any underwriter of such Transfer Restricted
Securities.
4. Liquidated Damages
(a) The Company and the Initial Purchasers agree that the
Holders of Transfer Restricted Securities will suffer damages if the Company
fails to fulfill its obligations pursuant to Section 2 or Section 3 hereof and
that it would not be possible to ascertain the extent of such damages.
Accordingly, in the event of such failure by the Company to fulfill such
obligations, the Company hereby agrees to pay liquidated damages ("Liquidated
Damages") to each Holder of Transfer Restricted Securities under the
circumstances and to the extent set forth below:
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(i) if either the Exchange Offer Registration Statement or, if
applicable, the Shelf Registration Statement has not been filed with the
SEC on or prior to the applicable date specified for such filing;
(ii) if either the Exchange Offer Registration Statement or, if
applicable, the Shelf Registration Statement is not declared effective by
the SEC on or prior to the applicable date specified for such
effectiveness (the "Effectiveness Target Date"); or
(iii) if an Exchange Offer Registration Statement becomes
effective, but the Company fails to consummate the Exchange Offer within
45 days of the earlier of the effectiveness of such registration
statement or 135 days after the Issue Date; or
(iv) if the Shelf Registration Statement is declared effective
by the SEC but thereafter such Shelf Registration Statement ceases to be
effective or usable in connection with resales of Series A Debentures
during the Effectiveness Period;
(any of the foregoing, a "Registration Default"), then the Company shall pay
Liquidated Damages to each Holder, with respect to the first 90- day period or
portion thereof immediately following the occurrence of such Registration
Default, in an amount equal to $0.05 per week per $1,000 principal amount of
Transfer Restricted Securities held by such Holder. Upon a Registration
Default, Liquidated Damages will accrue at the rate specified above until such
Registration Default is cured and the amount of Liquidated Damages will
increase by an additional $0.05 per week per $1,000 principal amount of
Transfer Restricted Securities with respect to each subsequent 90-day period or
portion thereof, up to a maximum amount of Liquidated Damages of $0.30 per week
per $1,000 principal amount of Transfer Restricted Securities (regardless of
whether one or more than one Registration Default is outstanding). Following
the cure of any Registration Default relating to any Transfer Restricted
Securities, the accrual of Liquidated Damages with respect to such Registration
Default will cease. A Registration Default under clause (i) above shall be
cured on the date that the Exchange Offer Registration Statement or the Shelf
Registration Statement, as applicable, is filed with the SEC; a Registration
Default under clause (ii) above shall be cured on the date that the Exchange
Offer Registration Statement or the Shelf Registration Statement, as
applicable, is declared effective by the SEC; a Registration Default under
clause (iii) above shall be cured on the earlier of the date (A) the Exchange
Offer is consummated or (B) the Company delivers a Shelf Notice to the Holders
of Transfer Restricted Securities; and a Registration Default under clause (iv)
above shall be cured on the earlier of (A) the date the Shelf Registration
Statement is declared effective and is usable or (B) the Effectiveness Period
expires.
(b) The Company shall notify the Trustee within one business day
after each and every date on which a Registration Default first occurs.
Accrued and unpaid Liquidated Damages shall be paid by the Company to the
Holders by wire transfer of immediately
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available funds to the accounts specified by them or by mailing checks to their
registered addresses if no such accounts have been specified on each interest
payment date provided in the Indenture (whether or not any interest is then
payable on the Series A Debentures) and on each payment date provided in the
Indenture, including, without limitation, whether upon redemption, maturity (by
acceleration or otherwise), purchase upon a change of control or purchase upon
a sale of assets. Each obligation to pay Liquidated Damages with respect to
any Registration Default shall be deemed to commence accruing on the date of
such Registration Default and to cease accruing when such Registration Default
has been cured. In no event shall the Company pay Liquidated Damages in excess
of the applicable maximum weekly amount set forth above, regardless of whether
one or multiple Registration Defaults exist.
(c) The parties hereto agree that the Liquidated Damages
provided for in this Section 4 constitute a reasonable estimate of the damages
that will be suffered by Holders by reason of the failure to file the Exchange
Offer Registration Statement or the Shelf Registration Statement, the failure
of the Exchange Offer Registration Statement or the Shelf Registration
Statement to be declared effective, the failure to consummate the Exchange
Offer or the failure of the Shelf Registration Statement to remain effective,
as the case may be, in accordance with this Agreement.
5. Registration Procedures
In connection with the registration of any Series B Debentures
or Transfer Restricted Securities pursuant to Sections 2 or 3 hereof, the
Company shall effect such registration to permit the sale of such Series B
Debentures or Transfer Restricted Securities (as applicable) in accordance with
the intended method or methods of disposition thereof, and pursuant thereto the
Company shall:
(a) Prepare and file with the SEC, a Registration Statement or
Registration Statements as prescribed by Section 2 or Section 3 hereof, and to
use its reasonable best efforts to cause such Registration Statement to become
effective and remain effective as provided herein; provided that if (1) such
filing is pursuant to Section 3 hereof, or (2) a Prospectus contained in an
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 Series B Debentures during the Applicable Period,
before filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Company shall furnish to and afford the Holders of the
Transfer Restricted Securities and each such Participating Broker-Dealer, as
the case may be, covered by such Registration Statement, their counsel and the
managing underwriters, if any, a reasonable opportunity 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. Such
documents shall be so furnished at least 3 business days prior to such filing,
or such later date as is reasonable under the circumstances. The Company shall
not file any Registration Statement or
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Prospectus or any amendments or supplements thereto in respect of which the
Holders, pursuant to this Agreement, must be afforded an opportunity to review
prior to the filing of such document, if the Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities covered by such
Registration Statement, or such Participating Broker-Dealer, as the case may
be, their counsel, or the managing underwriters, if any, shall reasonably
object within a reasonable time after receipt of any such materials.
(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, or such shorter period as will
terminate when all Transfer Restricted Securities covered by such Registration
Statement have been sold; cause the related Prospectus to be supplemented by
any required Prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 (or any similar provisions then in force) under the Securities Act;
and comply with the applicable provisions of the Securities Act, the Exchange
Act and the rules and regulations of the SEC promulgated thereunder 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 Series B Debentures being sold by a
Participating Broker-Dealer covered by any such Prospectus; the Company shall
be deemed not to have used its reasonable best efforts to keep a Registration
Statement effective during the Applicable Period or the Effectiveness Period,
as the case may be, if it voluntarily takes any action that would result in
selling Holders of the Transfer Restricted Securities covered thereby or
Participating Broker-Dealers seeking to sell Series B Debentures not being able
to sell such Transfer Restricted Securities or such Series B Debentures during
such Period, unless (i) such action is required by applicable law, or (ii) such
action is taken by the Company in good faith and for valid business reasons
(not including avoidance of its obligations hereunder), including, but not
limited to, suspension of the Registration Statement or other actions taken
solely in connection with or in anticipation of the acquisition or divestiture
of assets, material financings or other transactions effected in good faith for
valid business reasons.
(c) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an 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 Series B Debentures during the Applicable Period, notify the selling
Holders of Transfer Restricted Securities, or each known Participating
Broker-Dealer, as the case may be, their counsel (if previously identified to
the Company in writing) and the managing underwriters, if any, as promptly as
practicable and, if requested, confirm such notice in writing, (i) when a
Prospectus, 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 (including in any such written
notice a statement that any Holder may, upon request, obtain, without charge,
one conformed
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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 Prospectus or the initiation of
any proceedings for that purpose, (iii) if at any time a Prospectus is required
by the Securities Act to be delivered in connection with sales of the Transfer
Restricted Securities or resales of the Series B Debentures the representations
and warranties of the Company contained in any agreement (including any
underwriting agreement) contemplated by Section 5(1) hereof cease to be true
and correct in all material respects, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of a Registration Statement or any of the Transfer
Restricted Securities or the Series B Debentures to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or the
initiation of any proceeding for such purpose, (v) of the happening of any
material event or any material 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 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 reasonable determination
that a post-effective amendment to a Registration Statement would be
appropriate.
(d) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an 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 Series B Debentures during the Applicable Period, use its 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 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 Statement is filed pursuant to
Section 3 hereof and if requested by the managing underwriters, if any, or the
Holders of a majority in aggregate principal amount of the Transfer Restricted
Securities being sold in connection with an underwritten offering, (i) as
promptly as practicable incorporate in a prospectus supplement or
post-effective amendment such information relating to underwriters, if any, any
Holder of Transfer Restricted Securities or the plan of distribution of the
Transfer Restricted Securities as the managing underwriter, if any, or such
Holders may reasonably request to be included therein, (ii) make all required
filings of such prospectus supplement or such
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post-effective amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such prospectus supplement or
post-effective amendment pursuant to clause (i), and (iii) supplement or make
amendments to such Registration Statement with such information as is required
in connection with any reasonable request made pursuant to clause (i).
(f) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an 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 Series B Debentures during the Applicable Period, furnish to each
selling Holder of Transfer Restricted Securities and to each such Participating
Broker-Dealer who so requests and to each managing underwriter, if any, without
charge, 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.
(g) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an 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 Series B Debentures during the Applicable Period, deliver to each
selling Holder, or each such Participating Broker-Dealer, as the case may be,
its counsel (if previously identified to the Company in writing), and the
underwriters, if any, without charge, 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 hereof, the Company hereby consents to the use of
such Prospectus and each amendment or supplement thereto by each of the selling
Holders or, during the Applicable Period, each such Participating
Broker-Dealer, as the case may be, and their underwriters or agents, if any,
and dealers, if any, in connection with the offering and sale of the Transfer
Restricted Securities covered by, or the sale by Participating Broker-Dealers
of the Series B Debentures pursuant to, such Prospectus and any amendment or
supplement thereto.
(h) Prior to any public offering of Transfer Restricted
Securities or any delivery of a Prospectus contained in the Exchange Offer
Registration Statement by any Participating Broker-Dealer who seeks to sell
Series B Debentures during the Applicable Period, use its reasonable best
efforts to register or qualify and to cooperate with the selling Holders of
Transfer Restricted Securities or each such Participating Broker-Dealer, as the
case may be, the underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Transfer Restricted Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as any
selling Holder, Participating Broker-Dealer, or the managing
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underwriters reasonably request in writing; 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 Series B Debentures held by
Participating Broker-Dealers or the Transfer Restricted Securities covered by
the applicable Registration Statement; provided that the Company shall not be
required to (A) qualify as a foreign corporation or as a dealer in securities
in any jurisdiction where it is not then so qualified, (B) take any action that
would subject it to general service of process in any such jurisdiction where
it is not then so subject or (C) subject itself to taxation in any such
jurisdiction where it is not then so subject.
(i) If a Shelf Registration Statement is filed pursuant to
Section 3 hereof, cooperate with the selling Holders of Transfer Restricted
Securities and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities 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 ("DTC"), and enable such Transfer Restricted Securities to be in such
denominations and registered in such names as the managing underwriters, if
any, or Holders may reasonably request at least two business days prior to any
sale of the Transfer Restricted Securities.
(j) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an 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 Series B Debentures during the Applicable Period, upon the occurrence
of any event contemplated by paragraph 5(c)(v) or 5(c)(vi) above, as promptly
as practicable prepare and (subject to Section 5(a) hereof) file with the SEC,
at the expense of the Company, 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 Transfer Restricted Securities being sold thereunder or to
the purchasers of the Series B Debentures 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.
(k) Prior to the effective date of the first Registration
Statement relating to the Transfer Restricted Securities, (i) provide the
Trustee with certificates for the Transfer Restricted Securities in a form
eligible for deposit with DTC and (ii) provide a CUSIP number for the Transfer
Restricted Securities.
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(l) In connection with an underwritten offering of Transfer
Restricted Securities pursuant to a Shelf Registration Statement, enter into an
underwriting agreement as is customary in underwritten offerings and take all
other customary and appropriate actions as are reasonably requested by the
managing underwriters in order to expedite or facilitate the registration or
the disposition of such Transfer Restricted Securities, and in such connection,
(i) make such representations and warranties to the underwriters, with respect
to the business of the Company 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 companies to underwriters in
underwritten offerings; (ii) obtain opinions of counsel to the Company and
updates thereof in form and substance reasonably satisfactory to the managing
underwriters, addressed to the underwriters covering the matters customarily
covered in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by underwriters; (iii) obtain "cold comfort"
letters and updates thereof in form and substance reasonably satisfactory to
the managing underwriters from the independent certified public accountants of
the Company (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business acquired or
proposed to be acquired by its for which financial statements and financial
data are, or are required to be, included 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 and such other matters as are reasonably
requested by underwriters as permitted by Statement on Auditing Standards No.
72; and (iv) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable than those
set forth in Section 7 hereof (or such other reasonable provisions and
procedures acceptable to Holders of a majority in aggregate principal amount of
Transfer Restricted Securities covered by such Registration Statement and the
managing underwriters) with respect to all parties to be indemnified pursuant
to said Section. The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder.
(m) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an 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 Series B Debentures during the Applicable Period, make available for
inspection by any selling Holder of such Transfer Restricted Securities being
sold, or each such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of Transfer Restricted
Securities, 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 properties of the Company and its
subsidiaries (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 and its subsidiaries
to supply all relevant
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information reasonably requested by any such Inspector in connection with such
Registration Statement. Records which the Company determines, in good faith,
to be confidential and any Records which it notifies the Inspectors are
confidential shall not be disclosed by the Inspectors, 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, other than as a result of the disclosure or
failure to safeguard by such Inspector. No information obtained pursuant to
this paragraph (m) shall be used by any person or entity obtaining access
thereto in connection with any transactions in securities of the Company in
violation of law. In addition, notwithstanding anything to the contrary
contained herein, the Company shall not be required to provide any information
to the Holders or the underwriters that the Company is prohibited by law from
disclosing.
(n) Provide an indenture trustee for the Transfer Restricted
Securities or the Series B Debentures, as the case may be, and cause the
Indenture to be qualified under the TIA not later than the effective date of
the Exchange Offer or the first Registration Statement relating to the Transfer
Restricted Securities; and in connection therewith, cooperate with the trustee
under any such indenture and the Holders of the Transfer Restricted Securities,
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 its reasonable best efforts to cause such trustee to execute, all customary
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.
(o) Comply with all applicable rules and regulations of the SEC
and, as soon as reasonably practicable after the effective date of the
applicable Registration Statement, make generally available to the holders of
Series B Debentures and the Holders, if any, a consolidated earning statement
of the Company (which need not be certified by an independent public
accountant) that satisfies the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder.
(p) If an Exchange Offer is to be consummated, upon delivery of
the Transfer Restricted Securities by Holders to the Company (or to such other
Person as directed by the Company), in exchange for the Series B Debentures,
the Company shall, where appropriate, ▇▇▇▇ or cause to be marked on such
Transfer Restricted Securities that such Transfer Restricted Securities are
being cancelled in exchange for the Series B Debentures; in no event shall such
Transfer Restricted Securities be marked as paid or otherwise satisfied.
(q) Cooperate with each seller of Transfer Restricted Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Transfer Restricted Securities and
their respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc. (the "NASD").
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(r) Use its reasonable best efforts to take all other steps
necessary to effect the registration of the Transfer Restricted Securities
covered by a Registration Statement contemplated hereby.
(s) Use its reasonable best efforts to cause the Transfer
Restricted Securities or the Series B Debentures, as applicable, covered by an
effective registration statement required by Section 2 or Section 3 hereof to
be rated by one or two rating agencies, if and as so requested by the Holders
of a majority in aggregate principal amount of Transfer Restricted Securities
relating to such registration statement or the managing underwriters in
connection therewith, if any.
The Company may require each seller of Transfer Restricted
Securities or Participating Broker-Dealer as to which any registration is being
effected to furnish to the Company such information regarding such seller or
Participating Broker-Dealer and the distribution of such Transfer Restricted
Securities or Series B Debentures to be sold by such Participating
Broker-Dealer, as the case may be, as the Company may, from time to time,
reasonably request. The Company may exclude from such registration the
Transfer Restricted Securities or Series B Debentures of any seller or
Participating Broker-Dealer, as the case may be, who fails to furnish such
information within a reasonable time (and in any event within ten business
days) after receiving such request. Each seller of Transfer Restricted
Securities as to which a Shelf Registration is being effected, and each
Participating Broker-Dealer utilizing a Prospectus from the Exchange Offer
Registration Statement, agrees to furnish reasonably promptly to the Company
all information required to be disclosed in order to make any information
previously furnished to the Company by such seller or Participating
Broker-Dealer not materially misleading. No such seller or Participating
Broker Dealer, as applicable, shall be entitled to Liquidated Damages pursuant
to Section 4 hereof if such person fails so to provide all such reasonably
requested information to the extent that any such failure by such person is the
primary reason for the assessment of Liquidated Damages.
Each Holder of Transfer Restricted Securities and each Participating
Broker-Dealer agrees by acquisition of such Transfer Restricted
Securities or Series B Debentures to be sold by such Participating
Broker-Dealer, as the case may be, that, upon receipt of any notice from the
Company 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 shall forthwith
discontinue disposition of such Transfer Restricted Securities covered by such
Registration Statement or Prospectus or such Series B Debentures to be sold by
such 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(j) hereof, or until it is advised
in writing by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto. In
the event the Company gives any such notice, and subsequently delivers to each
Holder or Participating Broker-Dealer copies of such supplemented or amended
Prospectus, then each
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Holder or Participating Broker-Dealer will either destroy or return to the
Company all copies (other than permanent file copies then in such Holder's or
Participating Broker-Dealer's possession) of any Prospectus that, as a result
of such occurrence leading to such notice, is no longer accurate.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company,
whether or not the Exchange Offer or a Shelf Registration Statement is filed or
becomes effective, 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, reasonable fees and disbursements of counsel in
connection with Blue Sky qualifications of the Transfer Restricted Securities or
Series B Debentures), (ii) printing expenses (including, without limitation,
expenses of printing certificates for Transfer Restricted Securities or Series B
Debentures in a form eligible for deposit with DTC and of printing Prospectuses
if the printing of Prospectuses is requested by the managing underwriters, if
any, or, in respect of Transfer Restricted Securities or Series B Debentures to
be sold by any Participating Broker-Dealer during the Applicable Period, by the
Holders of a majority in aggregate principal amount of the Transfer Restricted
Securities included in any Registration Statement or of such Series B
Debentures, as the case may be), (iii) fees and disbursements of counsel for the
Company, (iv) fees and disbursements of all independent certified public
accountants referred to in Section 5(i)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (v) the fees and expenses of any
"qualified independent underwriter" or other independent appraiser participating
in an offering pursuant to Section 3 of Schedule E to the By-laws of the NASD,
(vi) rating agency fees, (vii) fees and expenses of all other Persons retained
by the Company, (viii) internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees of the Company
performing legal or accounting duties), (ix) the expense of any required
financial audits and (x) the fees and expenses incurred in connection with the
listing of the securities to be registered on any securities exchange. Nothing
contained in this Section 6 shall create an obligation on the part of the
Company to pay or reimburse any Holder for any underwriting commission or
discount attributable to any such Holder's Transfer Restricted Securities
included in an underwritten offering pursuant to a Registration Statement filed
in accordance with the terms of this Agreement, or to guarantee such Holder any
profit or proceeds from the sale of such Series A Debentures.
(b) In connection with any Shelf Registration Statement
hereunder, the Company shall reimburse the Holders of the Transfer Restricted
Securities being registered in such registration for the reasonable fees and
disbursements of not more than one firm of
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attorneys chosen by the Holders of a majority in aggregate principal amount of
the Transfer Restricted Securities to be included in such Registration
Statement.
7. Indemnification
The Company agrees to indemnify and hold harmless (i) each of
the Initial Purchasers, each Holder of Transfer Restricted Securities, each
Holder of Series B Debentures and each Participating Broker-Dealer, (ii) each
person, if any, who controls (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) any such Person (any of the
persons referred to in this clause (ii) being hereinafter referred to as a
"controlling person"), and (iii) the respective officers, directors, partners,
employees, representatives and agents of any of such Person or any controlling
person (any person referred to in clause (i), (ii) or (iii) may hereinafter be
referred to as an "Indemnified Person") to the fullest extent lawful, from and
against any and all losses, claims, damages, liabilities, judgments, actions
and reasonable expenses (including, without limitation, and as incurred,
reimbursement of all reasonable costs of investigating, preparing, pursuing or
defending any claim or action or any investigation or proceeding by any
governmental agency or body, commenced or threatened, including the reasonable
fees and expenses of counsel to any Indemnified Person) caused by, related to,
based upon, arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus (as amended or supplemented if the Company 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 light of the circumstances under which they
were made, not misleading, except insofar as such losses, claims, damages,
liabilities or expenses are caused by (i) any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information relating to any Indemnified Person furnished to the Company or
any underwriter in writing by such Indemnified Person expressly for use
therein, or (ii) any untrue statement contained in or omission from a
preliminary Prospectus or Prospectus, as applicable, if a copy of the
Prospectus (as then amended or supplemented, if the Company shall have
furnished to or on behalf of the Holder participating in the distribution
relating to the relevant Registration Statement any amendments or supplements
thereto) was not sent or given by or on behalf of such Holder to the person
asserting any such losses, liabilities, claims, damages or expenses who
purchased Series A Debentures, if such is required by law at or prior to the
written confirmation of the sale of such Series A Debentures to such person and
the untrue statement contained in or omission from such preliminary Prospectus
or Prospectus, as applicable, was corrected in the Prospectus (as then amended
or supplemented). The Company shall notify the Holders promptly upon becoming
aware thereof of the institution, threat or assertion of any claim, proceeding
(including any governmental investigation) or litigation of which it shall have
become aware in connection with the matters addressed by this Agreement which
involves the Company or an Indemnified Person.
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In connection with any Registration Statement in which a Holder of
Transfer Restricted Securities is participating, such Holder of Transfer
Restricted Securities agrees, severally and not jointly, to indemnify and hold
harmless the Company and its directors, officers, partners, employees,
representatives and agents and each person who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to each Indemnified
Person, but only with reference to information relating to such Indemnified
Person and furnished to the Company in writing by such Indemnified Person
expressly for use in any Registration Statement or Prospectus, any amendment or
supplement thereto, or any preliminary Prospectus. The liability of any
Indemnified Person pursuant to this paragraph shall in no event exceed the
proceeds (net of reasonable commissions) received by such Indemnified Person
from sales of Transfer Restricted Securities or Series B Debentures 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 party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying person") in writing, (provided that the failure to give such
notice shall not relieve the indemnifying person of its obligations under this
Section 7 unless and only to the extent that the indemnifying person is
materially prejudiced by the failure to notify) and the indemnifying person,
upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and
any others indemnifying person may reasonably designate in such proceeding and
shall pay the reasonable fees and expenses actually incurred by such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such indemnified party, unless (i) the
indemnifying person and the indemnified party shall have mutually agreed in
writing to the contrary, (ii) the indemnifying person shall have failed
promptly to assume the defense and employ counsel reasonably satisfactory to
the indemnified party or (iii) the named parties to any such action (including
any impleaded parties) include both such indemnified party and the indemnifying
person, or any affiliate of the indemnifying person and such indemnified party
shall have reasonably advised by counsel that representation of such
indemnified party and any such indemnifying party 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) due to actual or
potential differing interests between them (in which case the indemnifying
person shall not have the right to assume the defense of such action on behalf
of such indemnified party), it being understood, however, that the indemnifying
person shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) for all such indemnified parties, which firm shall be
reasonably satisfactory
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to the indemnifying parties. Such separate firm for sellers of Transfer
Restricted Securities shall be designated in writing by those indemnified
parties who sold a majority in outstanding aggregate principal amount of
Transfer Restricted Securities sold by all such indemnified parties, and any
such separate firm for the Company, its directors, its officers and such
control persons of the Company shall be designated in writing by the Company.
The indemnifying person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
person agrees to indemnify any indemnified party from and against any loss or
liability by reason of such settlement or judgment to the extent of such
indemnifying party's indemnification obligation hereunder. No indemnifying
person shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second
paragraphs of this Section 7 is unavailable to an indemnified party in respect
of any losses, claims, damages, liabilities, or expenses referred to therein
(other than by reason of the exceptions provided therein), then each
indemnifying person under such paragraphs, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
liabilities, or expenses (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnified party on the one hand and the
indemnifying person(s) on the other in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities, or
expenses or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative faults of the indemnifying person(s) and the indemnified party, as
well as any other relevant equitable considerations. The relative fault of the
Company on the one hand an any Indemnified Persons on the other 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 by such
Indemnified Persons and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties agrees that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if such indemnified parties 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 party as a result of the losses,
claims, damages, 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 party in connection
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with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Indemnified Person be
required to contribute any amount in excess of the amount by which proceeds
received by such Indemnified Person from sales of Transfer Restricted
Securities or Series B Debentures exceeds the amount of any damages that such
Indemnified Person has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the indemnifying parties
may otherwise have to the indemnified parties referred to above. The
Indemnified Persons' obligations to contribute pursuant to this Section 7 are
several in proportion to the respective principal amount of Securities sold by
each of the Indemnified Persons hereunder and not joint.
8. Rules 144 and 144A
The Company covenants that it will file the reports required
to be filed by it pursuant to the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder in a timely manner and, if
at any time the Company is not required to file such reports, it will, upon the
reasonable request of any Holder of Transfer Restricted Securities, make
available information required by Rule 144 and Rule 144A under the Securities
Act in order to permit sales pursuant to Rule 144 and Rule 144A. The Company
further covenants that it will take such further action as any Holder of
Transfer Restricted Securities may reasonably request, all to the extent
required from time to time to enable such Holder to sell Transfer Restricted
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 and Rule 144A, or (b) any similar
rule or regulation hereafter adopted by the SEC (it being expressly understood
that the foregoing shall not create any obligation on the part of the Company
to file periodic or other reports under the Exchange Act at any time that it is
not otherwise required to file such reports pursuant to the Exchange Act).
9. Underwritten Registrations
(a) If any of the Transfer Restricted Securities covered by any
Shelf Registration Statement 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 Transfer Restricted Securities included in such
offering and shall be reasonably acceptable to the Company.
No Holder of Transfer Restricted Securities may participate in
any underwritten registration hereunder, unless such Holder (a) agrees to sell
such Holder's
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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 questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
(b) Each Holder of Transfer Restricted Securities agrees, if
requested (pursuant to a timely written notice) by the managing underwriters in
an underwritten offering or by a placement agent in a private offering of the
Company's debt securities, not to effect any private sale or distribution
(including a sale pursuant to Rule 144(k) or Rule 144A under the Securities Act,
but excluding non- public sales to any of its affiliates, officers, directors,
employees and controlling persons), of any of the Series A Debentures, except
pursuant to an Exchange Offer, during the period beginning 10 days prior to, and
ending 90 days after, the closing date of the underwritten or private offering,
as applicable.
The foregoing provisions shall not apply to any Holder of Transfer
Restricted Securities if such Holder is prevented by applicable statute or
regulation from entering into any such agreement; provided, however, that if it
receives a written request as provided in the preceding paragraph, no such
Holder shall effect any disposition of Series A Debentures that would otherwise
be restricted by the provisions of the preceding paragraph without providing
reasonable advance written notice of such disposition to the Company, the
managing underwriter or the placement agent, as the case may be.
The Company agrees, without the written consent of the managing
underwriters in an underwritten offering of Transfer Restricted Securities
covered by a Registration Statement filed pursuant to Section 3 hereof, not to
effect any public or private sale or distribution of its respective debt
securities, including a sale pursuant to Regulation D or Rule 144A under the
Securities Act, during the period beginning 10 days prior to, and ending 90 days
after, the closing date of each underwritten offering made pursuant to such
Registration Statement (provided, however, that such period shall be extended by
the number of days from and including the date of the giving of any notice
pursuant to Section 5(c)(v) or (c)(vi) hereof to and including the date when
each seller of Transfer Restricted Securities covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 5(j) hereof).
10. Miscellaneous
(a) No Inconsistent Agreements. The Company has not, as of the
date hereof, and the Company shall not, after the date of this Agreement, enter
into any agreement with respect to any of its securities that is inconsistent
with the rights granted to the Holders of Transfer Restricted Securities in this
Agreement or otherwise conflicts with the provisions hereof. The Company will
not enter into any agreement with respect to any of its securities which will
grant to any Person piggy-back registration rights with respect to a
Registration Statement.
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(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions
hereof may not be given, unless the Company has obtained the written consent of
Holders of at least a majority of the then outstanding aggregate principal
amount of Transfer Restricted Securities. Notwithstanding the foregoing, a
waiver or consent to or departures from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders 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 may
be given by Holders of at least a majority in aggregate principal amount of the
Transfer Restricted Securities being sold by such Holders pursuant to such
Registration Statement; provided that the provisions of this sentence may not be
amended, modified or supplemented except in accordance with the provisions of
the immediately preceding sentence.
(c) 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 telecopier:
(i) if to a Holder of Transfer Restricted Securities, at the
most current address given by the Trustee to the Company;
(ii) if to the Company, Liberty Group Publishing, Inc., ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
President, with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Partners, L.P., ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇, and with a copy to ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.;
and
(iii) if to any Initial Purchasers, c/▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ Securities Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Syndicate Department, with a copy to ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; one
business day after being timely delivered to a nationally recognized next-day
air courier, if made by next-day air courier; and when receipt is acknowledged
by the addressee, if telecopied on a business day on such business day, if not
on a business day, on the first business day thereafter.
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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
under the Indenture at the address specified in such Indenture.
(d) 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, including, without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities. The Company
agrees that the Holders of the Series A Debentures shall be third-party creditor
beneficiaries to the agreements made hereunder by the Initial Purchasers and the
Company, and each Holder shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable to
protect its rights hereunder
(e) 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.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) 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 WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
(h) 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 reasonable 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 hereto 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.
(i) Entire Agreement. This Agreement, together with the
Purchase Agreement, is intended by the parties hereto as a final expression of
their agreement, and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect to the subject
matter contained herein and therein. Any and all prior oral or written
agreements, representations, warranties, contracts, understandings,
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correspondence, conversations and memoranda between the Initial Purchasers, on
the one hand, and the Company, 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 are merged
herein and replaced hereby.
(j) Series A Debentures Held by the Company or its Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Transfer Restricted Securities is required hereunder, Transfer Restricted
Securities held by the Company or its affiliates (as such term is defined in
Rule 405 under the Securities Act) (other than the Initial Purchasers or
subsequent Holders of Transfer Restricted Securities or Series B Debentures if
such subsequent Holders are deemed to be affiliates solely by reason of their
holdings of such Transfer Restricted Securities or Series B Debentures), shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(k) Survival. This Agreement is intended to survive the
consummation of the transactions contemplated by the Purchase Agreement. The
indemnification and contribution obligations under section 7 of this Agreement
shall survive the termination of the Company's obligations under sections 2 and
3 of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
LIBERTY GROUP PUBLISHING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
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The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first
above written.
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
CITICORP SECURITIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
______________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
BT ALEX. ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
______________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
CHASE SECURITIES INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
______________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
-27-
