EXHIBIT 4.12
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REGISTRATION RIGHTS AGREEMENT
Dated as of February 11, 2003
Between
GLOBALSANTAFE CORPORATION
and
XXXXXXX, XXXXX & CO.
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$250,000,000
5% NOTES DUE 2013
TABLE OF CONTENTS
1. Definitions........................................................... 1
2. Exchange Offer........................................................ 4
3. Shelf Registration Statement.......................................... 7
4. Additional Interest................................................... 8
5. Registration Procedures............................................... 10
6. Registration Expenses................................................. 16
7. Indemnification....................................................... 17
8. Rule 144 and 144A..................................................... 20
9. Miscellaneous......................................................... 20
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement"), dated as of
February 11, 2003, is between GlobalSantaFe Corporation, a Cayman Islands
company (the "Company"), and Xxxxxxx, Sachs & Co. (the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase Agreement
(the "Purchase Agreement"), dated as of February 4, 2003, by and between the
Company and the Initial Purchasers that provides for the sale by the Company to
the Initial Purchasers of $250,000,000 aggregate principal amount of the
Company's 5% Notes due 2013 (the "Notes"). To induce the Initial Purchasers to
enter into the Purchase Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement for the benefit of the Initial
Purchasers and their direct and indirect transferees and assigns. The execution
and delivery of this Agreement is a condition to the Initial Purchasers'
obligations to purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the following
meanings:
Additional Interest: shall have the meaning set forth in Section 4(a).
Advice: shall have the meaning set forth in the last paragraph of Section
5.
Agreement: shall have the meaning set forth in the first introductory
paragraph.
Applicable Period: shall have the meaning set forth in Section 2(b).
business day: shall mean any day that is not a Saturday, Sunday or a day
on which banking institutions in New York are authorized or required by law to
be closed.
Closing Date: shall have the meaning given to such term in the Purchase
Agreement.
Company: shall have the meaning set forth in the first introductory
paragraph.
Effectiveness Date: means the date that is 180 days after the Closing
Date; provided, however, that with respect to any Shelf Registration Statement,
the Effectiveness Date shall be the 180th day after the delivery of a Shelf
Notice as required pursuant to Section 2(d) hereof; provided, however, that if
the Effective Date would otherwise fall on a day that is not a business day,
then the Effective Date shall be the next succeeding business day.
Effectiveness Period: shall have the meaning set forth in Section 3(a).
Exchange Act: means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Exchange Offer: shall have the meaning set forth in Section 2(a).
Exchange Notes: shall have the meaning set forth in Section 2(a).
Exchange Registration Statement: shall have the meaning set forth in
Section 2(a).
Exchange Notes: shall have the meaning set forth in Section 2(a).
Filing Date: means (A) if no Exchange Registration Statement has been
filed by the Company pursuant to this Agreement, the 90th day after the Closing
Date; and (B) with respect to a Shelf Registration Statement, the 90th day after
the delivery of a Shelf Notice as required pursuant to Section 2(d) hereof;
provided, however, that if the Filing Date would otherwise fall on a day that is
not a business day, then the Filing Date shall be the next succeeding business
day.
Holder: means any holder of a Registrable Security or Registrable
Securities.
Indenture: means the Indenture, dated as of February 1, 2003, by and
between the Company and Wilmington Trust Company, as trustee, pursuant to which
the Notes are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Initial Purchasers: shall have the meaning set forth in the second
introductory paragraph.
Initial Shelf Registration Statement: shall have the meaning set forth in
Subsection 3(a).
Inspectors: shall have the meaning set forth in Section 5(n).
NASD: shall have the meaning set forth in Section 5(r).
Notes: shall have the meaning set forth in the second introductory
paragraph.
Participating Broker-Dealer: shall have the meaning set forth in Section
2(b).
Person: means an individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
Private Exchange: shall have the meaning set forth in Section 2(b).
Private Exchange Notes: shall have the meaning set forth in Section 2(b).
Prospectus: means the prospectus included in any Registration Statement,
including any preliminary prospectus or prospectus subject to completion and any
prospectus as amended or supplemented by any prospectus supplement, and all
other amendments and supplements to such prospectus, with respect to the terms
of the offering of any portion of the Registrable Securities, including
post-effective amendments, in each case including all documents incorporated by
reference or deemed to be incorporated by reference therein.
Purchase Agreement: shall have the meaning set forth in the second
introductory paragraph hereto.
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Records: shall have the meaning set forth in Section 5(n).
Registrable Securities: means each Note upon its original issuance and at
all times subsequent thereto, each Exchange Note as to which Section 2(d)(iv) is
applicable upon its original issuance and at all times subsequent thereto and
each Private Exchange Note upon its original issuance and at all times
subsequent thereto, until the earliest to occur of (i) a Registration Statement
(other than, with respect to any Exchange Note as to which Section 2(d)(iv)
hereof is applicable, the Exchange Registration Statement) covering such Note,
Exchange Note or Private Exchange Note, as the case may be, has been declared
effective by the SEC and such Note, Exchange Note or Private Exchange Note, as
the case may be, has been disposed of in accordance with such effective
Registration Statement, (ii) such Note, Exchange Note or Private Exchange Note,
as the case may be, is sold in compliance with Rule 144, or is saleable without
restriction pursuant to Rule 144(k), (iii) such Note has been exchanged for an
Exchange Note pursuant to an Exchange Offer and is entitled to be resold without
complying with the prospectus delivery requirements of the Securities Act and
(iv) such Note, Exchange Note or Private Exchange Note, as the case may be,
ceases to be outstanding for purposes of the Indenture.
Registration Statement: means any registration statement of the Company
filed with the SEC under the Securities Act pursuant to this Agreement,
including, but not limited to, any Exchange Registration Statement and any Shelf
Registration Statement, including the Prospectus and any amendment or supplement
to such registration statement, including all post-effective amendments, and
exhibits thereto and documents incorporated by reference therein.
Rule 144: means Rule 144 promulgated under the Securities Act, as such
rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC.
Rule 144A: means Rule 144A promulgated under the Securities Act, as such
rule may be amended from time to time, or any similar rule (other than Rule 144)
or regulation hereafter adopted by the SEC.
Rule 415: means Rule 415 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: means the Securities and Exchange Commission.
Securities Act: means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Shelf Notice: shall have the meaning set forth in Section 2(d).
Shelf Registration Statement: shall have the meaning set forth in Section
3(a).
Subsequent Shelf Registration Statement: shall have the meaning set forth
in Subsection 3(b).
TIA: means the Trust Indenture Act of 1939, as amended.
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Trustee: means the trustee under the Indenture.
2. Exchange Offer
(a) The Company shall file with the SEC, to the extent not prohibited by any
applicable law or applicable interpretation of the staff of the SEC, a
Registration Statement (the "Exchange Registration Statement") no later
than the applicable Filing Date with respect to an offer to exchange (the
"Exchange Offer") any and all of the Registrable Securities (other than
the Private Exchange Notes, if any) for a like aggregate principal amount
of debt securities of the Company that are identical in all material
respects to the Notes (the "Exchange Notes") (and that are entitled to the
benefits of the Indenture or a trust indenture that is identical in all
material respects to the Indenture (other than such changes as are
necessary to comply with any requirements of the SEC to effect or maintain
the qualification thereof under the TIA)), except that the Exchange Notes
(other than Private Exchange Notes, if any) shall have been registered
pursuant to an effective Registration Statement under the Securities Act
and shall contain no restrictive legend thereon. The Exchange Offer shall
comply with all applicable tender offer rules and regulations under the
Exchange Act. The Company agrees to use its reasonable best efforts to (i)
cause the Exchange Registration Statement to be declared effective under
the Securities Act on or before the applicable Effectiveness Date; (ii)
keep the Exchange Offer open for at least 20 business days (or longer if
required by applicable law) after the date that notice of the Exchange
Offer first is mailed to Holders; and (iii) consummate the Exchange Offer
on or prior to the 230th day following the Closing Date. If after such
Exchange Registration Statement is declared effective by the SEC, the
Exchange Offer or the issuance of the Exchange Notes thereunder is delayed
or suspended by any stop order, injunction or other order or requirement
of the SEC or any other governmental agency or court, such Exchange
Registration Statement shall be deemed not to have become effective for
purposes of this Agreement during the period of such delay or suspension
until the Exchange Offer may legally resume. Each Holder who participates
in the Exchange Offer will be required to represent in writing that any
Exchange Notes 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 of the Exchange Notes in violation of the
provisions of the Securities Act and that such Holder is not an affiliate
of the Company within the meaning of the Securities Act and is not acting
on behalf of any Persons who could not truthfully make the foregoing
representations, as well as any additional representations required or
requested by the SEC or its staff. Upon consummation of the Exchange Offer
in accordance with this Section 2, the provisions of this Agreement shall
continue to apply, mutatis mutandis, solely with respect to Registrable
Securities that are Private Exchange Notes and Exchange Notes held by
Participating Broker-Dealers (as defined below), and the Company shall
have no further obligation to register Registrable Securities (other than
Private Exchange Notes and other than in respect of any Exchange Notes as
to which clause 2(d)(iv) hereof applies) pursuant to Section 3 hereof. No
securities other than the Exchange Notes shall be included in the Exchange
Registration Statement.
(b) The Company shall include within the Prospectus contained in the Exchange
Registration Statement a section entitled "Plan of Distribution"
reasonably acceptable to the Initial Purchasers that shall contain a
summary statement of the positions taken or policies made by the staff of
the SEC with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial
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owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes
received by such broker-dealer in the Exchange Offer (a "Participating
Broker-Dealer"), whether such positions or policies have been publicly
disseminated by the staff of the SEC or such positions or policies
represent the prevailing views of the staff of the SEC. Such "Plan of
Distribution" section shall also expressly permit, to the extent permitted
by applicable policies and regulations of SEC, the use of the Prospectus
by all Persons subject to the prospectus delivery requirements of the
Securities Act, including, to the extent permitted by applicable policies
and regulations of SEC, all Participating Broker-Dealers, and include a
statement describing the means by which Participating Broker-Dealers may
resell the Exchange Notes in compliance with the Securities Act.
The Company shall use its reasonable best efforts to keep the
Exchange Registration Statement effective and to amend and supplement the
Prospectus contained therein in order to permit such Prospectus to be
lawfully delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as is necessary
to comply with applicable law in connection with any resale of the
Exchange Notes; provided, however, that such period shall not exceed 210
days after the consummation of the Exchange Offer (or such longer period
if extended pursuant to the last paragraph of Section 5 hereof) (the
"Applicable Period").
If, prior to consummation of the Exchange Offer, any of the Initial
Purchasers holds any Notes acquired by it and having, or that are
reasonably likely to be determined to have, the status of an unsold
allotment in the initial distribution, the Company, upon the request of
any such Initial Purchaser simultaneously with the delivery of the
Exchange Notes in the Exchange Offer, shall issue and deliver to such
Initial Purchaser in exchange (the "Private Exchange") for such Notes held
by such Initial Purchaser a like principal amount of debt securities of
the Company that are identical in all material respects to the Exchange
Notes (the "Private Exchange Notes") (and that are issued pursuant to the
same indenture as the Exchange Notes), except for the placement of a
restrictive legend on such Private Exchange Notes. If permissible, the
Private Exchange Notes shall bear the same CUSIP number as the Exchange
Notes.
Interest on the Exchange Notes and the Private Exchange Notes will
accrue from the later of (i)(A) the last interest payment date on which
interest was paid on the Notes surrendered in exchange therefor or (B) if
the Notes are surrendered for exchange on a date in a period which
includes the record date for an interest payment date to occur on or after
the date of such exchange and as to which interest will be paid, the date
of such interest payment date or, (ii) if no interest has been paid on the
Notes, from the Closing Date.
In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming part
of the Exchange Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last business day on
which the Exchange Offer shall remain open; and
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(3) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Company shall:
(1) accept for exchange all Notes properly tendered and not
validly withdrawn pursuant to the Exchange Offer or the Private Exchange;
and
(2) cause the Trustee to authenticate and deliver promptly to
each Holder of Notes, Exchange Notes or Private Exchange Notes, as the
case may be, equal in principal amount to the Notes of such Holder
accepted for exchange.
The Exchange Notes and the Private Exchange Notes may be issued
under the Indenture or an indenture identical in all material respects to
the Indenture, which in either event has been qualified under the TIA or
is exempt from such qualification and shall provide that the Exchange
Notes shall not be subject to any transfer restrictions and the Private
Exchange Notes shall be subject to the transfer restrictions set forth or
referred to in the restrictive legend placed on such Private Exchange
Notes. The Indenture or such indenture shall provide that the Exchange
Notes, the Private Exchange Notes and the Notes shall vote and consent
together on all matters as one class and that neither the Exchange Notes,
the Private Exchange Notes nor the Notes will have the right to vote or
consent as a separate class on any matter.
(c) If, following the date hereof there is announced a change in SEC policy
with respect to exchange offers such as the Exchange Offer, that in the
reasonable opinion of counsel to the Company raises a substantial question
as to whether the Exchange Offer is permitted by applicable federal law,
the Company hereby agrees to seek a no-action letter or other favorable
decision from the SEC allowing the Company to consummate an Exchange Offer
for the Notes. The Company hereby agrees to pursue the issuance of such a
decision to the level of the senior staff of the SEC. In connection with
the foregoing, the Company hereby agrees to take all such other actions as
may be requested by the SEC or its staff or otherwise required in
connection with the issuance of such decision, including without
limitation (i) participating in telephonic conferences with the SEC, (ii)
delivering to the SEC or its staff an analysis prepared by counsel to the
Company setting forth the legal bases, if any, upon which such counsel has
concluded that such an exchange offer should be permitted and (iii)
diligently pursuing a resolution (which need not be favorable) by the SEC
or its staff.
(d) If, (i) notwithstanding the efforts contemplated in Section 2(c) above,
the Company is not permitted to effect an Exchange Offer, (ii) the holder
of Private Exchange Notes so requests within 20 business days after the
consummation of the Private Exchange, (iii) because of any changes in law
or in currently prevailing interpretations of the staff of the SEC, a
Holder (other than an Initial Purchaser holding Notes acquired directly
from the Company) is not permitted to participate in the Exchange Offer
and requests the Company in writing within 20 business days after the
consummation of the Exchange Offer to have such Holder's Notes included in
a Registration Statement, or (iv) in the case of any Holder that
participates in the Exchange Offer, such Holder does not receive Exchange
Notes on the date of the exchange that may be sold without restriction
under state and federal securities laws (other than due solely to the
status of
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such Holder as an affiliate of the Company within the meaning of the
Securities Act) and such Holder requests the Company in writing within 20
business days after the consummation of the Exchange Offer to have such
Holder's Exchange Notes included in a Registration Statement), then the
Company shall promptly deliver written notice thereof (the "Shelf Notice")
to the Trustee and the affected Holder(s), and shall file a Shelf
Registration Statement pursuant to Section 3 hereof.
3. Shelf Registration Statement
If a Shelf Notice is delivered as contemplated by Section 2(d)
hereof, then:
(a) Shelf Registration Statement. The Company shall file with the SEC a
Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Registrable Securities not
exchanged in the Exchange Offer, Private Exchange Notes and Exchange Notes
as to which Section 2(d)(iv) is applicable (the "Initial Shelf
Registration Statement"). The Company shall use its reasonable best
efforts to file with the SEC the Initial Shelf Registration Statement on
or prior to the applicable Filing Date. The Initial Shelf Registration
Statement shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Securities for resale by Holders in the
manner or manners designated by them (but not including any underwritten
offerings). The Company shall not permit any securities other than the
Registrable Securities to be included in the Initial Shelf Registration
Statement or any Subsequent Shelf Registration Statement (as defined
below).
The Company shall use its reasonable best efforts to cause the
Initial Shelf Registration Statement to be declared effective under the
Securities Act on or prior to the applicable Effectiveness Date and to
keep the Initial Shelf Registration Statement continuously effective under
the Securities Act until the date that is two years from the Closing Date
or such shorter period ending when all Registrable Securities covered by
the Initial Shelf Registration Statement have been sold in the manner set
forth and as contemplated in the Initial Shelf Registration Statement or,
if applicable, a Subsequent Shelf Registration Statement, or cease to be
outstanding or cease to be Registrable Securities (the "Effectiveness
Period"); provided, however, that the Effectiveness Period in respect of
the Initial Shelf Registration Statement shall be extended to the extent
required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174 under the Securities Act and as
otherwise provided herein.
(b) Withdrawal of Stop Orders; Subsequent Shelf Registration Statements. If
the Initial Shelf Registration Statement or any Subsequent Shelf
Registration Statement ceases to be effective for any reason at any time
during the Effectiveness Period (other than because of the sale of all of
the securities registered thereunder), the Company shall use its
reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 20
business days of such cessation of effectiveness amend such Shelf
Registration Statement in a manner to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional Shelf
Registration Statement pursuant to Rule 415 covering all of the
Registrable Securities covered by and not sold under the Initial Shelf
Registration Statement or an earlier Subsequent Shelf Registration
Statement (each, a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use
its reasonable best efforts to cause the Subsequent Shelf Registration
Statement to be declared
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effective under the Act as soon as practicable after such filing and to
keep such subsequent Shelf Registration Statement continuously effective
for a period equal to the number of days in the Effectiveness Period less
the aggregate number of days during which the Initial Shelf Registration
Statement or any Subsequent Shelf Registration Statement was previously
continuously effective. As used herein the term "Shelf Registration
Statement" means the Initial Shelf Registration Statement and any
Subsequent Shelf Registration Statement.
(c) Supplements and Amendments. The Company shall promptly supplement and
amend the Shelf Registration Statement if required by the Securities Act
or if reasonably requested by the Holders (or their counsel) of a majority
in aggregate principal amount of the Registrable Securities covered by
such Shelf Registration Statement with respect to the information included
therein with respect to one or more of such Holders.
4. Additional Interest
(a) The Company and the Initial Purchasers agree that the Holders of
Registrable Securities will suffer damages if the Company fails to fulfill
its obligations under Section 2 or Section 3 hereof and that it would not
be feasible to ascertain the extent of such damages with precision.
Accordingly, the Company agrees to pay, as liquidated damages, additional
interest on the Notes ("Additional Interest") under the circumstances and
to the extent set forth below (without duplication):
(i) if (A) neither the Exchange Registration Statement nor the
Initial Shelf Registration Statement has been filed with the SEC on
or prior to the date that is 90 days after the Closing Date or (B)
notwithstanding that the Company has consummated or will consummate
the Exchange Offer, the Company is required to file a Shelf
Registration Statement and such Shelf Registration Statement is not
filed on or prior to the applicable Filing Date, then, commencing on
the day after any such Filing Date, Additional Interest shall accrue
on the principal amount of the Notes over and above the stated
interest at a rate of 0.25% per annum for the first 90 days
immediately following such applicable Filing Date, and such
Additional Interest rate shall increase by an additional 0.25% per
annum at the beginning of each subsequent 90-day period;
(ii) if (A) neither the Exchange Registration Statement nor
the Shelf Registration Statement is declared effective by the SEC on
or prior to the date 180 days after the Closing Date or (B)
notwithstanding that the Company has consummated or will consummate
the Exchange Offer, the Company is required to file a Shelf
Registration Statement and such Shelf Registration Statement is not
declared effective by the SEC on or prior to the applicable
Effectiveness Date in respect of such Shelf Registration Statement,
then, commencing on the day after such Effectiveness Date,
Additional Interest shall accrue on the principal amount of the
Notes included or that should have been included in such
Registration Statement over and above the stated interest at a rate
of 0.25% per annum for the first 90 days immediately following the
day after such Effectiveness Date, and such Additional Interest rate
shall increase by an additional 0.25% per annum at the beginning of
each subsequent 90-day period; and
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(iii) if either (A) the Company has not exchanged Exchange
Notes for all Notes validly tendered in accordance with the terms of
the Exchange Offer on or prior to the 230th day after the Closing
Date or (B) if applicable, a Shelf Registration Statement has been
declared effective and such Shelf Registration Statement ceases to
be effective at any time prior to the second anniversary of the
Closing Date (other than after such time as all Notes have been
disposed of thereunder), then Additional Interest shall accrue on
the Notes (over and above any interest otherwise payable on the
Notes) at a rate of 0.25% per annum for the first 90 days commencing
on (x) the 230th day after the Closing Date, in the case of (A)
above, or (y) the day such Shelf Registration Statement ceases to be
effective, in the case of (B) above , and such Additional Interest
rate shall increase by an additional 0.25% per annum at the
beginning of each such subsequent 90-day period;
provided, however, that (1) the Additional Interest rate on the Notes may
not accrue under more than one of the foregoing clauses (i) through (iii)
of this Section 4(a) at any one time and at no time shall the aggregate
amount of Additional Interest accruing exceed at any one time in the
aggregate 1.00% per annum, and (2) no Additional Interest shall accrue in
the event that the Company has timely filed an Exchange Offer Registration
Statement but is unable to complete the Exchange Offer pursuant to Section
2(c) and has timely delivered a Shelf Notice unless the Company shall
thereafter fail to satisfy one or more of the time requirements specified
above in clauses (i) through (iii) of this Section 4(a) for filing and
effectiveness of the Shelf Registration Statement, in which event
Additional Interest as specified above shall accrue, subject, however, to
the foregoing proviso (1) and all Additional Interest shall cease to
accrue upon the expiration of the second anniversary of the Closing Date;
and provided, further, that (1) upon the filing of the Exchange
Registration Statement or a Shelf Registration Statement (in the case of
clause (i) of this Section 4(a)), (2) upon the effectiveness of the
Exchange Registration Statement or the Shelf Registration Statement (in
the case of clause (ii) of this Section 4(a)), or (3) upon the exchange of
Exchange Notes for all Notes tendered (in the case of clause (iii)(A) of
this Section 4(a)), or (4) upon the effectiveness of the applicable Shelf
Registration Statement that had ceased to remain effective (in the case of
(iii)(B) of this Section 4(a)), or (5) upon such time as there are no
Registrable Securities outstanding, Additional Interest on the Notes shall
cease to accrue.
(b) The Company shall notify the Trustee within three business days after each
and every date on which an event occurs in respect of which Additional
Interest is required to be paid pursuant to Section 4(a). Any amounts of
Additional Interest due pursuant to this Section 4 will be payable in cash
semi-annually on each February 1 and August 1 (to the holders of record on
the January 15 and July 15 immediately preceding such dates), commencing
with the first such date occurring after any such Additional Interest
commences to accrue. The amount of Additional Interest will be determined
by multiplying the Additional Interest rate by the principal amount of the
Registrable Securities, multiplied by a fraction, the numerator of which
is the number of days the Additional Interest rate was applicable during
such period (determined on the basis of a 360-day year consisting of
twelve 30-day months) and the denominator of which is 360.
5. Registration Procedures
In connection with the filing of any Registration Statement pursuant
to Section 2 or 3 hereof, the Company shall effect such registrations to
permit the sale of the securities covered
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thereby in accordance with the intended method or methods of disposition
thereof, and pursuant thereto and in connection with any Registration
Statement filed by the Company hereunder, the Company shall:
(a) Prepare and file with the SEC prior to the applicable Filing Date, a
Registration Statement or Registration Statements as prescribed by Section
2 or 3 hereof, and use its reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as
provided herein; provided, however, that, if (i) such filing is pursuant
to Section 3 hereof or (2) a Prospectus contained in the Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period relating thereto from
whom the Company has received written notice that it will be a
Participating Broker-Dealer in the Exchange Offer, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Company shall furnish to and afford the Holders of the
Registrable Securities covered by such Registration Statement (with
respect to a Registration Statement filed pursuant to Section 3 hereof) or
each such Participating Broker-Dealer (with respect to any such
Registration Statement), as the case may be, and their counsel, a
reasonable opportunity to review copies of all such documents (excluding
copies of any documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed, in each case at least five
business days prior to such filing. The Company shall not file any
Registration Statement or Prospectus or any amendments or supplements
thereto if the Holders of a majority in aggregate principal amount of the
Registrable Securities covered by such Registration Statement or their
counsel shall reasonably object on or prior to the fifth business day
following receipt of a copy of any Registration Statement or Prospectus or
any amendment or supplement thereto proposed to be filed.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness Period
or the Applicable Period, as the case may be; cause the related Prospectus
to be supplemented by any prospectus supplement required by applicable
law, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) promulgated under the Securities Act;
and comply with the provisions of the Securities Act and the Exchange Act
applicable to it with respect to the disposition of all securities covered
by such Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any securities
being sold by a Participating Broker-Dealer covered by any such
Prospectus; the Company shall be deemed not to have used its reasonable
best efforts to keep a Registration Statement effective during the
Applicable Period if the Company voluntarily takes any action that would
result in selling Holders of the Registrable Securities covered thereby or
Participating Broker-Dealers seeking to sell Exchange Notes not being able
to sell such Registrable Securities or such Exchange Notes during that
period, unless such action is required by applicable law or unless the
Company complies with this Agreement, including without limitation, the
provisions of Section 5(k) hereof and the last paragraph of this Section
5.
(c) If (i) a Shelf Registration Statement is filed pursuant to Section 3
hereof or (ii) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, notify the selling
Holders of Registrable Securities, or each such Participating
Broker-Dealer, as the case may be, and their counsel,
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promptly (but in any event within two business days) and confirm such
notice in writing: (A) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has
become effective under the Securities Act (including in such notice a
written statement that any Holder may, upon request, obtain, at the sole
expense of the Company, one conformed copy of such Registration Statement
or post-effective amendment including financial statements and schedules,
documents incorporated or deemed to be incorporated by reference and all
exhibits); (B) of the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or the initiation of any
proceedings for that purpose; (C) if at any time when a prospectus is
required by the Securities Act to be delivered in connection with sales of
the Registrable Securities or resales of Exchange Notes by Participating
Broker-Dealers the representations and warranties of the Company contained
in any agreement cease to be true and correct; (D) 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 Registrable Securities or the Exchange Notes to be sold by
any Participating Broker-Dealer for offer or sale in any jurisdiction, or
the initiation or written threat of any proceeding for such purpose; (E)
of the happening of any event, the existence of any condition or any
information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material
respect or that requires the making of any changes in or amendments or
supplements to such Registration Statement, Prospectus or documents so
that, in the case of the Registration Statement, it will not contain any
untrue statement of a material fact or omit to state any material fact
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 the light of the
circumstances under which they were made, not misleading; (F) of the
Company's determination that a post-effective amendment to a Registration
Statement would be appropriate; and (G) if at any time when a prospectus
is required by the Securities Act to be delivered in connection with sales
of the Registrable Securities or resales of Exchange Notes by
Participating Broker-Dealers, the Company determines, in its reasonable
judgment, after consultation with counsel, that the continued use of the
prospectus would require the disclosure of confidential information or
interfere with any financing, acquisition, reorganization or other
material transaction involving the Company.
(d) 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 or suspending the
qualification (or exemption from qualification) of any of the Registrable
Securities or the Exchange Notes for sale in any jurisdiction in the
United States and, if any such order is issued, to use its reasonable best
efforts to obtain the withdrawal of any such order at the earliest
practicable moment.
(e) If a Shelf Registration Statement is filed pursuant to Section 3 and if
requested by the Holders of a majority in aggregate principal amount of
the Registrable Securities being sold in connection with an offering, or
any Participating Broker-Dealer (i) as promptly as practicable incorporate
in a prospectus or post-effective amendment such information as such
Holders, any Participating Broker-Dealer or counsel for any of them
determine is reasonably necessary to be included
11
therein, (ii) make all required filings of such prospectus supplement or
such post-effective amendment as soon as practicable after the Company has
received notification of the matters to be incorporated in such Prospectus
or post-effective amendment and (iii) supplement or make amendments to
such Registration Statement; provided, however, that the Company shall not
be required to take any action pursuant to this Section 5(e) that would,
in the opinion of counsel for the Company, violate applicable law.
(f) If (i) a Shelf Registration Statement is filed pursuant to Section 3
hereof or (ii) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, furnish to each selling
Holder of Registrable Securities and to each such Participating
Broker-Dealer who so requests and to their respective counsel at the sole
expense of the Company, one conformed copy of such 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 (i) a Shelf Registration Statement is filed pursuant to Section 3
hereof or (ii) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, deliver to each selling
Holder of Registrable Securities, or each such Participating
Broker-Dealer, as the case may be, and their respective counsel, at the
sole expense of the Company, as many copies of the Prospectus or
Prospectuses (including each form of preliminary prospectus) and each
amendment or supplement thereto and any documents incorporated by
reference therein as such Persons may reasonably request; and, subject to
the last paragraph of this Section 5, the Company hereby consents to the
use of such Prospectus and each amendment or supplement thereto by each of
the selling Holders of Registrable Securities or each such Participating
Broker-Dealer, as the case may be, and the agents, if any, and dealers, if
any, in connection with the offering and sale of the Registrable
Securities covered by, or the sale by Participating Broker-Dealers of the
Exchange Notes pursuant to, such Prospectus and any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Securities or Exchange Notes
or any delivery of a Prospectus contained in the Exchange Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, to use its reasonable best efforts to
register or qualify and to cooperate with the selling Holders of
Registrable Securities or each such Participating Broker-Dealer, as the
case may be, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States
as any selling Holder or Participating Broker-Dealer reasonably requests
in writing; provided, however, that where Exchange Notes held by
Participating Broker-Dealers or Registrable Securities are offered other
than through an underwritten offering, the Company agrees to cause its
counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 5(h); use its
reasonable best efforts to 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
12
the disposition in such jurisdictions of the Exchange Notes held by
Participating Broker-Dealers or the Registrable Securities covered by the
applicable Registration Statement; provided, however, that the Company
shall not be required to file any general consent to service of process or
to qualify as a foreign corporation or as a securities dealer in any
jurisdiction or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject.
(i) If a Shelf Registration Statement is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Securities to facilitate
the timely preparation and delivery of certificates representing
Registrable 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; and if such Registrable Securities are to be in
certificated form, to enable such Registrable Securities to be in such
denominations and registered in such names as the Holders may request.
(j) Use its reasonable best efforts to cause the Registrable Securities
covered by the Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to
enable the Holders thereof or the Participating Broker-Dealers, if any, to
consummate the disposition of such Registrable Securities, except as may
be required solely as a consequence of the nature of such selling Holder's
business, in which case the Company will cooperate in all reasonable
respects with the filing of such Registration Statement and the granting
of such approvals.
(k) If (i) a Shelf Registration Statement is filed pursuant to Section 3
hereof or (ii) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, upon the occurrence of
any event contemplated by Section 5(c)(ii)(E), 5(c)(ii)(F) or 5(c)(ii)(G)
hereof, as promptly as practicable (in the case of 5(c)(ii)(G) after
cessation of the condition referred to therein), prepare and (subject to
Section 5(a) hereof) file with the SEC, at the Company's sole expense, a
supplement or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder or to the purchasers of the
Exchange Notes to whom such Prospectus will be delivered by a
Participating Broker-Dealer, any such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(l) Use its reasonable efforts to cause the Registrable Securities covered by
a Registration Statement or the Exchange Notes, as the case may be, to be
rated with the appropriate rating agencies, if so requested by the Holders
of a majority in aggregate principal amount of Registrable Securities
covered by such Registration Statement or the Exchange Notes, as the case
may be.
(m) Prior to the effective date of the first Registration Statement relating
to the Registrable Securities, (i) provide the Trustee with certificates
for, or the form of global note with respect to, the Registrable
Securities or Exchange Notes, as the case may be, in a form eligible for
deposit
13
with The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Securities or Exchange Notes, as the case may be.
(n) If (i) a Shelf Registration Statement is filed pursuant to Section 3
hereof or (ii) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, upon reasonable advance
notice make available for inspection by any selling Holder of such
Registrable Securities being sold, or each such Participating
Broker-Dealer, as the case may be, and any attorney, accountant or other
agent retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be (collectively, the "Inspectors"), at the
offices where normally kept, during reasonable business hours without
interfering in the orderly business of the Company, all financial and
other relevant records, pertinent corporate documents and instruments 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 respective officers, directors
and employees of the Company and its subsidiaries to supply all
information reasonably requested by any such Inspector in connection with
such Registration Statement. Records that the Company determines, in good
faith, to be confidential and any Records that they notify the Inspectors
are confidential shall not be disclosed by the Inspectors unless (A) the
disclosure of such Records is necessary to avoid or correct a material
misstatement or omission in such Registration Statement, (B) the release
of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction, (C) after giving reasonable prior notice
to the Company, disclosure of such information is, in the opinion of
counsel for any Inspector, necessary or advisable in connection with any
action, claim, suit or proceeding, directly or indirectly, involving or
potentially involving such Inspector and arising out of, based upon,
relating to or involving this Agreement or any transactions contemplated
hereby or arising hereunder or (D) the information in such Records has
been made generally available to the public. Each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will be
required to agree that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as
the basis for any market transactions in the securities of the Company
unless and until such information is generally available to the public.
Each selling Holder of such Registrable Securities and each such
Participating Broker-Dealer will be required to further agree that it
will, upon learning that disclosure of such Records is sought in a court
of competent jurisdiction, give notice to the Company and allow the
Company to undertake appropriate action to prevent disclosure of the
Records deemed confidential at the Company's sole expense.
(o) Provide an indenture trustee for the Registrable Securities or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof, as the case may be, to be
qualified under the TIA not later than the effective date of the Exchange
Offer or the first Registration Statement relating to the Registrable
Securities; and in connection therewith, cooperate with the Trustee and
the Holders of the Registrable 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
efforts to cause such trustee to execute, all documents as may be required
to effect such changes and all other forms and documents required to be
filed with the SEC to enable such indenture to be so qualified in a timely
manner.
14
(p) Comply with all applicable rules and regulations of the SEC and make
generally available to its security holders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no
later than 45 days after the end of any 12-month period (or 90 days after
the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or reasonable
best efforts underwritten offering and (ii) if not sold to underwriters in
such an offering, commencing on the first day of the first fiscal quarter
of the Company after the effective date of a Registration Statement, which
statements shall cover said 12-month periods.
(q) Upon consummation of the Exchange Offer, obtain an opinion of counsel to
the Company, in a form customary for underwritten transactions, addressed
to the Trustee that the Exchange Notes and the related indenture
constitute legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
subject to customary exceptions and qualifications. If an Exchange Offer
or a Private Exchange is to be consummated, upon delivery of the
Registrable Securities by Holders to the Company (or to such other Person
as directed by the Company) in exchange for the Exchange Notes or the
Private Exchange Notes, as the case may be, the Company shall xxxx, or
cause to be marked, on such Registrable Securities that such Registrable
Securities are being cancelled in exchange for the Exchange Notes or the
Private Exchange Notes, as the case may be; in no event shall such
Registrable Securities be marked as paid or otherwise satisfied.
(r) Cooperate with each seller of Registrable Securities covered by any
Registration Statement and each Participating Broker-Dealer, if any,
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD").
(s) Use its reasonable efforts to take all other steps necessary or advisable
to effect the registration of the Registrable Securities covered by a
Registration Statement contemplated hereby.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable
Securities as the Company may, from time to time, reasonably request. The
Company may exclude from such registration the Registrable Securities of
any seller so long as such seller fails to furnish such information within
a reasonable time after receiving such request. Each seller as to which
any Shelf Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be disclosed in order
to make the information previously furnished to the Company by such seller
not materially misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the Holder of any securities of the Company, then such Holder
shall have the right to require (i) the insertion therein of language, in
form and substance reasonably satisfactory to such Holder, to the effect
that the holding by such Holder of such securities is not to be construed
as a recommendation by such Holder of the investment quality of the
securities covered thereby and that such holding does not imply that such
Holder will assist in meeting any future financial requirements of the
Company, or (ii) in the event that such reference to such Holder by name
or
15
otherwise is not required by the Securities Act or any similar federal
statute then in force, the deletion of the reference to such Holder in any
amendment or supplement to the Registration Statement filed or prepared
subsequent to the time that such reference ceases to be required.
Each Holder of Registrable Securities and each Participating
Broker-Dealer agrees by acquisition of such Registrable Securities or
Exchange Notes to be sold by such Participating Broker-Dealer, as the case
may be, that, upon actual receipt of any notice from the Company of the
happening of any event of the kind described in Sections 5(c)(ii)(B),
5(c)(ii)(D), 5(c)(ii)(E), 5(c)(ii)(F) or 5(c)(ii)(G) hereof, such Holder
will forthwith discontinue disposition of such Registrable Securities
covered by such Registration Statement or Prospectus or Exchange Notes to
be sold by such Holder or Participating Broker-Dealer, as the case may be,
until such Holder's or Participating Broker-Dealer's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof, or until it is advised in writing (the "Advice") by the Company
that the use of the applicable Prospectus may be resumed, and has received
copies of any amendments or supplements thereto. If the Company shall give
any such notice, each of the Effectiveness Period and the Applicable
Period shall be extended by the number of days during such periods from
and including the date of the giving of such notice to and including the
date when each seller of Registrable Securities covered by such
Registration Statement or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, shall have received (i) the copies of
the supplemented or amended Prospectus contemplated by Section 5(k) hereof
or (ii) the Advice, provided that the Effectiveness Period and the
Applicable Period shall not be extended beyond two years after the Closing
Date.
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 any Shelf Registration Statement is filed or becomes
effective, including, without limitation, (i) all registration and filing
fees (including, without limitation, 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 Registrable Securities or Exchange Notes and
determination of the eligibility of the Registrable Securities or Exchange
Notes for investment under the laws of such jurisdictions (A) where the
holders of Registrable Securities are located, in the case of the Exchange
Notes, or (B) as provided in Section 5(h) hereof, in the case of
Registrable Securities or Exchange Notes to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing and
duplicating expenses, including, without limitation, expenses of printing
certificates for Registrable Securities or Exchange Notes in a form
eligible for deposit with The Depository Trust Company and of printing or
duplicating Prospectuses if the printing of Prospectuses is requested by
the Holders of a majority in aggregate principal amount of the Registrable
Securities included in any Registration Statement or sold by any
Participating Broker-Dealer, as the case may be, (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel
for the Company and fees and disbursements of special counsel for the
sellers of Registrable Securities (subject to the provisions of Section
6(b) hereof), (v) rating agency fees, if any, and any fees associated with
making the Registrable Securities or Exchange Notes eligible for trading
through The Depository Trust Company, (vi) Securities Act liability
insurance, if the Company desires such insurance, (vii) fees and expenses
of all other Persons retained by the Company, (viii) internal expenses of
16
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 annual audit or "cold comfort" letters,
(x) the fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange, if applicable, and
(xi) the expenses relating to printing, word processing and distributing
of all Registration Statements, underwriting agreements, securities sales
agreements, indentures and any other documents necessary to comply with
this Agreement.
(b) The Company shall (i) reimburse the Holders of the Registrable Securities
being registered in a Shelf Registration Statement for the reasonable fees
and disbursements of not more than one counsel chosen by the Holders of a
majority in aggregate principal amount of the Registrable Securities to be
included in such Registration Statement, and (ii) reimburse reasonable
out-of-pocket expenses (other than legal expenses) of Holders of
Registrable Securities incurred in connection with the registration and
sale of the Registrable Securities pursuant to a Shelf Registration
Statement.
7. Indemnification
(a) Indemnification by the Company. The Company will indemnify and hold
harmless each Holder of Registrable Securities included in an Exchange
Registration Statement and each Holder of Registrable Securities included
in a Shelf Registration Statement against any losses, claims, damages or
liabilities, joint or several, to which such Holder may become subject
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Exchange Registration Statement or Shelf
Registration Statement, as the case may be, under which such Registrable
Securities were registered under the Securities Act, or any preliminary,
final or summary prospectus contained therein or furnished by the Company
to any such Holder, or any amendment or supplement thereto, 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 necessary to make the
statements therein not misleading, and will reimburse such Holder for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable to any
such Holder (i) to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in such registration
statement, or preliminary, final or summary prospectus, or amendment or
supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by such Holder expressly for use
therein or (ii) if such Holder sold to the Person asserting the claim the
Registrable Notes or Exchange Notes that are the subject of such claim
after receipt of a notice from the Company pursuant to Sections
5(c)(ii)(D), 5(c)(ii)(E), 5(c)(ii)(F) or 5(c)(ii)(G) hereof and prior to
receipt of copies of a supplemented or amended Prospectus contemplated by
Section 5(k) hereof, or an Advice that the use of the applicable
Prospectus may be resumed.
(b) Indemnification by the Holders. The Company may require, as a condition to
including any Registrable Securities in any registration statement filed
pursuant to Section 3 hereof, that the Company shall have received an
undertaking reasonably satisfactory to it from each Participating
Broker-Dealer selling Exchange Notes during the Applicable Period and from
each Holder,
17
severally and not jointly, to (i) indemnify and hold harmless the Company,
and all other Holders, against any losses, claims, damages or liabilities
to which the Company or such other Holders may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to any such Holder, or any
amendment or supplement thereto, 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 necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company by such Holder expressly for use
therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred;
provided, however, that no such Holder shall be required to undertake
liability to any Person under this Section 7(b) for any amounts in excess
of the dollar amount of the proceeds to be received by such Holder from
the sale of such Holder's Registrable Securities pursuant to such
registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is
to be made against an indemnifying party pursuant to the indemnification
provisions of or contemplated by this Section 7, notify such indemnifying
party in writing of the commencement of such action; but the omission so
to notify the indemnifying party (i) shall not relieve it from liability
under Subsection 7(a) or 7(b) hereof unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture
by the indemnifying party of substantial rights and defenses and (ii)
shall not, in any event, relieve it from any liability which it may have
to any indemnified party otherwise than under the indemnification
provisions of or contemplated by Section 7(a) or 7(b) hereof. In case any
such action shall be brought against any indemnified party and it shall
notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel for the indemnifying party),
and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, such indemnifying party
shall not be liable to such indemnified party for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
18
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 7(a) or Section 7(b) are unavailable to or
insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party
and indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or by such indemnified
party, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 7(d) were determined by pro rata
allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in this Section 7(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, or liabilities (or actions in respect thereof) referred
to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), no Holder shall be required to contribute
any amount in excess of the amount by which the dollar amount of the
proceeds received by such Holder from the sale of any Registrable
Securities (after deducting any fees and commissions applicable thereto)
exceeds the amount of any damages which such Holder 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 Holders' obligations in this
Section 7(d) to contribute shall be several in proportion to the principal
amount of Registrable Securities registered by them and not joint.
(e) The obligations of the Company under this Section 7 shall be in addition
to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and partner
of each Holder and each Person, if any, who controls any Holder within the
meaning of the Securities Act; and the obligations of the Holders
contemplated by this Section 7 shall be in addition to any liability which
the Holder may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each
Person, if any, who controls the Company within the meaning of the
Securities Act.
8. Rule 144 and 144A
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the SEC thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange
Act and, if at any time the Company is not required to file such reports,
they will, upon the request of any Holder of Registrable Securities, make
available to any Holder or beneficial owner of Registrable Securities in
connection with any sale thereof and any
19
prospective purchaser of such Registrable Securities from such Holder or
beneficial owner the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Registrable Securities
pursuant to Rule 144A. The Company further covenants and agrees, for so
long as any Registrable Securities remain outstanding, that it will take
such further action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such
holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule
144(k) under the Securities Act and Rule 144A.
9. Miscellaneous
(a) No Inconsistent Agreements. The Company has not entered into, as of the
date hereof, and shall not, after the date of this Agreement, enter into
any agreement with respect to any of the Company's securities that is
inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions
hereof. The Company has not entered and will not enter into any agreement
with respect to any of the Company's securities that will grant to any
Person piggy-back registration rights with respect to a Registration
Statement.
(b) Adjustments Affecting Registrable Securities. The Company shall not,
directly or indirectly, take any action with respect to the Registrable
Securities as a class that would adversely affect the ability of the
Holders of Registrable Securities to include such Registrable Securities
in a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, otherwise than with the prior
written consent of the Holders of not less than a majority in aggregate
principal amount of the then outstanding Registrable Securities.
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Securities whose securities are being
sold pursuant to a Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders
of Registrable Securities may be given by Holders of at least a majority
in aggregate principal amount of the Registrable Securities being sold by
such Holders pursuant to such Registration Statement; provided, however,
that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
(d) Notices. All notices and other communications (including without
limitation any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, next-day air courier or facsimile:
(1) if to a Holder of the Registrable Securities or any
Participating Broker-Dealer, at the most current address of
such Holder or Participating Broker-Dealer, as the case may
be, set forth on the records of the registrar under the
Indenture, with a copy in like manner to the Initial
Purchasers as follows:
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Xxxxxxx, Xxxxx & Co.
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile No.: 713.276.3590
Attention: Xxxxxxx X. Xxxxxxxxxx
with a copy to:
Fulbright & Xxxxxxxx L.L.P.
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Facsimile No.: 713.651.5246
Attention: Xxxxxx X. Xxxx, Xx.
(2) if to the Initial Purchasers, at the addresses specified in
Section 9(d)(1)
(3) if to the Company, at the address as follows:
GlobalSantaFe Corporation
00000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Facsimile No.: 281.925.6907
Attention: General Counsel
with a copy to:
Xxxxx Xxxxx L.L.P.
One Shell Plaza
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000-0000
Facsimile No.: 713.229.7701
Attention: J. Xxxxx Xxxxxxxx, Jr.
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 next-day air courier; and
when receipt is acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon the successors and assigns of each of the parties hereto,
the Holders and the Participating Broker-Dealers; 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 holds Registrable Securities.
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(f) Counterparts. This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW THAT WOULD RESULT IN THE APPLICATION OF
ANOTHER STATE'S LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the
parties hereto shall use their 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 that
they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(j) Notes Held by the Company or its Affiliates. Whenever the consent or
approval of Holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Company or its
affiliates (as such term is defined in Rule 405 under the Securities Act)
shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
(k) Third Party Beneficiaries. Holders of Registrable Securities and
Participating Broker-Dealers are intended third party beneficiaries of
this Agreement and this Agreement may be enforced by such Persons.
(l) Specific Performance. The parties hereto acknowledge that there would be
no adequate remedy at law if the Company fails to perform any of its
obligations hereunder and that the Initial Purchasers, Holders of
Registrable Securities and Participating Broker-Dealers may be irreparably
harmed by any such failure, and accordingly agree that the Initial
Purchasers, Holders of Registrable Securities and Participating
Broker-Dealers, in addition to any other remedy to which they may be
entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of the Company under this Agreement in
accordance with the terms and conditions of this Agreement, in any court
of the United States or any State thereof having jurisdiction; provided
that in the event that the Company fails to perform any terms of this
Agreement with respect to which Additional Interest pursuant to Section 4
hereof is expressly
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provided as a remedy, and the company is not in default of payment of such
Additional Interest, payment of such Additional Interest shall constitute
the sole monetary damages for such failure.
(m) Entire Agreement. This Agreement, together with the Purchase Agreement and
the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and any and all
prior oral or written agreements, representations, or warranties,
contracts, understandings, 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 and thereof are merged
herein and replaced hereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GLOBALSANTAFE CORPORATION
By: /s/ W. Xxxx Xxxxx
---------------------------------
Name: W. Xxxx Xxxxx
Title: Chief Financial officer
/s/ Xxxxxxx, Xxxxx & Co.
------------------------------------
(XXXXXXX, SACHS & CO.)
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