Exhibit 4.5
XXXXX NORTH AMERICA FINANCE INC.
$403,000,000 7-7/8% SENIOR NOTES DUE 2011
REGISTRATION RIGHTS AGREEMENT
New York, New York
March 14, 2003
Xxxxxxx Xxxxx Barney Inc.
Deutsche Bank Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
As Representatives of the several Initial Purchasers named in Schedule I
hereto
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxx North America Finance, Inc., a corporation organized under the
laws of the State of Delaware ("Finance Inc."), proposes, among other things, to
issue and sell to the several initial purchasers named in Schedule I hereto (the
"Initial Purchasers"), for whom you are acting as representatives (the
"Representatives"), $403,000,000 aggregate principal amount of its 7-7/8% Senior
Notes due 2011 (the "Notes") upon the terms set forth in a purchase agreement
dated March 11, 2003 (the "Purchase Agreement") relating to the initial
placement of the Notes (the "Initial Placement"). The Notes are being issued in
connection with the consummation of the acquisition of Xxxxxxx Computer
Services, Inc., a corporation organized under the laws of the State of Delaware
("Xxxxxxx"), as described in the Final Memorandum (as defined herein). Prior to
the Release (as defined in the Purchase Agreement), the Notes will not be
guaranteed. From and after the Release, Finance Inc.'s obligations under the
Notes will be guaranteed (the "Guarantees") (A) on an unsecured senior basis by
Moore Corporation Limited ("Moore"), Xxxxx Holdings U.S.A. Inc. ("Xxxxx
Holdings"), Xxxxx North America, Inc. ("Xxxxx XX"), Xxxxxxx and all of the
subsidiaries of Moore that are organized in the United States and Canada, to the
extent they are guarantors under the Senior Credit Facility and (B) on an
unsecured subordinated basis by all of the entities that are subsidiaries of
Moore that are organized outside of the United States and Canada, to the extent
they are guarantors under the Senior Credit Facility (as defined in the Purchase
Agreement), in each case after giving effect to the Acquisition (collectively,
the "Guarantors"). References herein to the "Securities" refer to only the Notes
prior to the Release and to the Notes and the Guarantees after the Release. At
the time of the Release, the Guarantors (as defined herein) (other than Xxxxx)
shall execute and deliver a Joinder Agreement (attached
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as an exhibit to the Escrow Agreement (as defined in the Purchase Agreement), to
be dated as of the Release Date, pursuant to which such Guarantors will become a
party to this Agreement and the Purchase Agreement. To induce the Initial
Purchasers to enter into the Purchase Agreement and to satisfy a condition of
your obligations thereunder, the Issuers (as defined herein) hereby agree with
you for your benefit and the benefit of the registered holders from time to time
of Securities and Exchange Securities (as defined below) (including the Initial
Purchasers) (each a "Holder" and, together, the "Holders" for as long as such
Person holds Securities), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following defined terms shall have the following
respective meanings:
"Act" shall mean the Securities Act of 1933, as amended.
"Affiliate" of or Person "affiliated" with, any specified Person
shall mean any Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with,
such specified Person. For purposes of this definition, "control" of a Person
shall mean the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled by" and "under common control with" shall have
meanings correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Conduct Rules" shall have the meaning set forth in Section 4(s)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Offer Registration Period" shall mean the up to 180-day
period following the consummation of the Registered Exchange Offer, exclusive of
any period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
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"Exchange Offer Registration Statement" shall mean a registration
statement of the Issuers on an appropriate form under the Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" shall mean debt securities of the Issuers
identical in all material respects to the Securities (except that the liquidated
damages provisions, the transfer restrictions and the restrictive legends shall
be modified or eliminated, as appropriate) and to be issued under the
Indentures.
"Exchanging Dealer" shall mean any Holder (which may include any
Initial Purchaser) that is a Broker-Dealer and elects to exchange any Securities
that it acquired for its own account as a result of market-making activities or
other trading activities (but not directly from any Issuer or any Affiliate of
any Issuer) for Exchange Securities.
"Final Memorandum" shall have the meaning set forth in the Purchase
Agreement.
"Finance Inc." shall have the meaning set forth in the preamble
hereto.
"Guarantees" shall have the meaning set forth in the preamble
hereto.
"Guarantors" shall have the meaning set forth in the preamble
hereto.
"Holder(s)" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities, to
be dated as of the original issuance of the Notes, between Finance Inc. and Bank
One, N.A., as trustee, as amended or supplemented from time to time in
accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
"Initial Purchasers" shall have the meaning set forth in the
preamble hereto.
"Issuers" shall mean Finance Inc. and the Guarantors.
"Losses" shall have the meaning set forth in Section 6(d) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities and Exchange Securities, as the case
may be, registered under a Registration Statement.
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"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering.
"Notes" shall have the meaning set forth in the preamble hereto.
"Person" shall mean an individual, trustee, corporation,
partnership, limited liability company, joint stock company, trust,
unincorporated association, union, business association, firm or other legal
entity.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or the Exchange Securities covered by
such Registration Statement, and all amendments and supplements thereto and all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer of the
Issuers to issue and deliver to the Holders of the Securities that are not
prohibited by any law or policy of the Commission from participating in such
offer a like aggregate principal amount of Exchange Securities in exchange for
the Securities.
"Registration Default" shall have the meaning set forth in Section
3(c).
"Registration Default Period" shall have the meaning set forth in
Section 3(c).
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the Exchange Securities pursuant to the provisions of this Agreement, any
amendments and supplements to such registration statement, including
post-effective amendments (in each case including the Prospectus contained
therein), all exhibits thereto and all material incorporated by reference
therein.
"Representatives" shall have the meaning set forth in the preamble
hereto.
"Securities" shall mean the Notes and the Guarantees.
"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
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"Shelf Registration Period" shall have the meaning set forth in
Section 3(b)(ii) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Issuers pursuant to the provisions of Section 3 hereof which
covers some or all of the Securities or Exchange Securities, as applicable, on
an appropriate form under Rule 415 under the Act, or any similar rule that may
be adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Trustee" shall mean the trustee with respect to the Securities
under the Indenture.
"underwriter" shall mean any Person deemed an "underwriter," under
the Act, of Securities or Exchange Securities in connection with an offering
thereof under a Shelf Registration Statement.
2. Registered Exchange Offer. (a) The Issuers shall prepare and,
not later than 210 days following the Issue Date (or if such 210th day is not a
Business Day, the next succeeding Business Day), shall file with the Commission
the Exchange Offer Registration Statement with respect to the Registered
Exchange Offer. The Issuers shall use their respective reasonable best efforts
to cause the Exchange Offer Registration Statement to become effective under the
Act within 270 days of the Issue Date (or if such 270th day is not a Business
Day, the next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Issuers shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable each Holder
electing to exchange Securities for Exchange Securities (assuming that such
Holder is not an Affiliate of any Issuer, acquires the Exchange Securities in
the ordinary course of such Holder's business, is not engaged in and does not
intend to engage in and has no arrangements or understandings with any Person to
participate in the distribution of the Exchange Securities, is not a
broker-dealer tendering Securities directly acquired from any Issuer for its own
account and is not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer) to trade such Exchange
Securities from and after their receipt without any limitations or restrictions
under the Act and under state securities or blue sky laws.
(c) In connection with the Registered Exchange Offer, the Issuers
shall:
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(i) mail 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) keep the Registered Exchange Offer open for not less than 30
days after the date notice thereof is mailed to the Holders (or longer if
required by applicable law);
(iii) if the Issuers receive notice from an Exchanging Dealer that
such Exchanging Dealer holds Securities acquired for the account of such
Exchanging Dealer as a result of market making or other trading
activities, use their respective reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective under the
Act, supplemented and amended as required under the Act to ensure that it
is available for sales of Exchange Securities by Exchanging Dealers during
the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee or an Affiliate of the Trustee;
(v) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York City time, on the last Business
Day on which the Registered Exchange Offer is open by sending to the
entity specified in the Prospectus, a facsimile or letter setting forth
the name of such Holder, the principal amount of the Securities delivered
for exchange and a statement that such Holder is withdrawing such Holder's
election to have such Securities exchanged;
(vi) prior to effectiveness of the Exchange Offer Registration
Statement, if requested, provide a supplemental letter to the Commission
(A) stating that the Issuers are conducting the Registered Exchange Offer
in reliance on the position of the Commission in Exxon Capital Holdings
Corporation (pub. avail. May 13, 1988) and Xxxxxx Xxxxxxx and Co.
Incorporated (pub. avail. June 5, 1991); and (B) including a
representation that the Issuers have not entered into any arrangement or
understanding with any Person to distribute the Exchange Securities to be
received in the Registered Exchange Offer and that, to the best of the
Issuers' information and belief, each Holder participating in the
Registered Exchange Offer is acquiring the Exchange Securities in the
ordinary course of business and has no arrangement or understanding with
any Person to participate in the distribution of the Exchange Securities;
and
(vii) comply in all respects with all applicable laws relating to
the Registered Exchange Offer.
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(d) Promptly after the close of the Registered Exchange Offer, the
Issuers shall:
(i) accept for exchange all Securities duly tendered and not
validly withdrawn pursuant to the Registered Exchange Offer in accordance
with the terms of the Exchange Offer Registration Statement and letter of
transmittal, which shall be an exhibit thereto;
(ii) deliver to the Trustee for cancellation in accordance with
Section 4(s) hereof all Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to each
Holder of Securities a principal amount of Exchange Securities equal to
the principal amount of the Securities of such Holder so accepted for
exchange.
(e) Each Holder, by tendering Securities for exchange for Exchange
Securities, acknowledges and agrees that any Broker-Dealer and any such Holder
using the Registered Exchange Offer to participate in a distribution of the
Exchange Securities (x) could not under Commission policy as in effect on the
date of this Agreement rely on the position of the Commission in Xxxxxx Xxxxxxx
and Co. Incorporated (pub. avail. June 5, 1991) and Exxon Capital Holdings
Corporation (pub. avail. May 13, 1988), as interpreted in Shearman & Sterling
(pub. avail. July 2, 1993) and similar no-action letters; and (y) must comply
with the registration and prospectus delivery requirements of the Act in
connection with any secondary resale transaction and must be covered by an
effective registration statement containing the selling security holder
information required by Item 507 and 508 of Regulation S-K, as applicable, under
the Act if the resales are of Exchange Securities obtained by such Holder in
exchange for Securities acquired by such Holder directly from any Issuer or one
of its Affiliates. Accordingly, each Holder participating in the Registered
Exchange Offer shall be required to represent to the Issuers that, at the time
of the consummation of the Registered Exchange Offer:
(i) any Exchange Securities received by such Holder will be
acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding with any
Person to participate in the distribution of the Securities or the
Exchange Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of any Issuer.
(f) If any Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange of
Securities constituting any
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portion of an unsold allotment, at the request of such Initial Purchaser, the
Issuers shall issue and deliver to such Initial Purchaser or the Person
purchasing Exchange Securities registered under a Shelf Registration Statement
as contemplated by Section 3 hereof from such Initial Purchaser, in exchange for
such Securities, a like principal amount of Exchange Securities. The Issuers
shall use their respective reasonable best efforts to cause the CUSIP Service
Bureau to issue the same CUSIP number for such Exchange Securities as for
Exchange Securities issued pursuant to the Registered Exchange Offer.
3. Shelf Registration. (a) If (i) due to any change in law or
applicable interpretations thereof by the Commission's staff, the Issuers
determine upon advice of their outside counsel that they are not permitted to
effect the Registered Exchange Offer as contemplated by Section 2 hereof; (ii)
for any other reason the Exchange Offer Registration Statement is not declared
effective within 270 days, or the Registered Exchange Offer is not consummated
within 300 days, after the Issue Date; or (iii) prior to the 20th day following
consummation of the Registered Exchange Offer (A) any Initial Purchaser so
requests with respect to Securities that are not eligible to be exchanged for
Exchange Securities in the Registered Exchange Offer and that are held by it
following consummation of the Registered Exchange Offer; (B) any Holder (other
than an Initial Purchaser) is not eligible to participate in the Registered
Exchange Offer; or (C) in the case of any Initial Purchaser that participates in
the Registered Exchange Offer or acquires Exchange Securities pursuant to
Section 2(f) hereof, such Initial Purchaser does not receive freely tradeable
Exchange Securities in exchange for Securities constituting any portion of an
unsold allotment (it being understood that (x) the requirement that an Initial
Purchaser deliver a Prospectus containing the information required by Item 507
and 508 of Regulation S-K, as applicable, under the Act in connection with sales
of Exchange Securities acquired in exchange for such Securities shall result in
such Exchange Securities being not "freely tradeable"; and (y) the requirement
that an Exchanging Dealer deliver a Prospectus in connection with sales of
Exchange Securities acquired in the Registered Exchange Offer in exchange for
Securities acquired as a result of market-making activities or other trading
activities shall not result in such Exchange Securities being not "freely
tradeable"), the Issuers shall effect a Shelf Registration Statement in
accordance with Section 3(b) hereof.
(b)(i) The Issuers shall as promptly as reasonably practicable (but
in no event more than 120 days after so required or requested pursuant to this
Section 3), file with the Commission, and thereafter shall use their respective
reasonable best efforts to cause to be declared effective under the Act (within
180 days after so required or requested pursuant to this Section 3), a Shelf
Registration Statement relating to the offer and sale of the Securities or the
Exchange Securities, as applicable, by the Holders thereof from time to time in
accordance with the methods of distribution elected by a majority of such
Holders and set forth in such Shelf Registration Statement; provided, however,
that nothing in this Section 3(b) shall require the filing of a Shelf
Registration Statement prior to the deadline for filing the Exchange Offer
Registration Statement set forth in Section 2(a); provided, further, that no
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Holder (other than an Initial Purchaser) shall be entitled to have the
Securities held by it covered by such Shelf Registration Statement unless such
Holder agrees in writing to be bound by all of the provisions of this Agreement
applicable to such Holder; and provided, further, that with respect to Exchange
Securities received by an Initial Purchaser in exchange for Securities
constituting any portion of an unsold allotment, the Issuers may, if permitted
by current interpretations by the Commission's staff, file a post-effective
amendment to the Exchange Offer Registration Statement containing the
information required by Item 507 and 508 of Regulation S-K, as applicable, in
satisfaction of their obligations under this subsection with respect thereto,
and any such Exchange Offer Registration Statement, as so amended, shall be
referred to herein as, and governed by the provisions herein applicable to, a
Shelf Registration Statement.
(ii) The Issuers shall use their respective reasonable best efforts
to keep the Shelf Registration Statement continuously effective, supplemented
and amended as required by the Act, in order to permit the Prospectus forming
part thereof to be usable by Holders for a period of two years from the original
issuance date of the Securities or such shorter period that will terminate when
all the Securities or Exchange Securities, as applicable, covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or cease to be outstanding (in any such case, such period being called
the "Shelf Registration Period").
(c) In the event that:
(i) within 210 days after the Issue Date, neither the Exchange
Offer Registration Statement nor the Shelf Registration Statement has been
filed with the Commission;
(ii) within 270 days after the Issue Date, the Exchange Offer
Registration Statement has not been declared effective;
(iii) within 300 days after the Issue Date, neither the Exchange
Offer has been consummated nor the Shelf Registration Statement has been
declared effective; or
(iv) after either the Exchange Offer Registration Statement or the
Shelf Registration Statement has been declared effective, such
Registration Statement thereafter ceases to be effective or usable in
connection with resales of Notes or Exchange Notes in accordance with and
during the periods specified in the Registration Rights Agreement
(each such event a "Registration Default" and each period during which a
Registration Default has occurred and is continuing, a "Registration Default
Period"), then, as liquidated
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damages for such Registration Default, additional interest will accrue on the
aggregate principal amount of the Notes and Exchange Notes (in addition to the
stated interest on the Notes and Exchange Notes) from and including the date on
which any such Registration Default has occurred to but excluding the date on
which all Registration Defaults have been cured. Additional interest will accrue
at an initial rate of 0.25% per annum, which rate shall increase by 0.25% per
annum for each subsequent 90-day period during which such Registration Default
continues up to a maximum of 1.00% per annum.
4. Additional Registration Procedures. In connection with any
Shelf Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) the Issuers shall:
(i) furnish to each of you or your counsel, not less than
three Business Days prior to the filing thereof with the Commission,
a copy of the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, and each amendment
thereto and each amendment or supplement, if any, to the Prospectus
included therein (and upon written request, all documents
incorporated by reference therein after the initial filing) and
shall use their reasonable best efforts to reflect in each such
document, when so filed with the Commission, such comments as you
reasonably propose within a reasonable time prior to such filing;
(ii) in the case of an Exchange Offer Registration Statement,
to the extent permitted by the Act, include the information in
substantially the form set forth in Annex A hereto on the facing
page of the Exchange Offer Registration Statement, in substantially
the form set forth in Annex B hereto in the forepart of the Exchange
Offer Registration Statement in a section setting forth details of
the Exchange Offer, in substantially the form set forth in Annex C
hereto in the underwriting or plan of distribution section of the
Prospectus contained in the Exchange Offer Registration Statement,
and in substantially the form set forth in Annex D hereto in the
letter of transmittal delivered pursuant to the Registered Exchange
Offer; and
(iii) in the case of a Shelf Registration Statement, include
the names of the Holders that propose to sell Securities or Exchange
Securities pursuant to the Shelf Registration Statement as selling
security holders and the applicable information required by Item 507
of Regulation S-K as provided by the Holders.
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(b) The Issuers shall advise you, the Holders of Securities or
Exchange Securities covered by any Shelf Registration Statement and any
Exchanging Dealer under any Exchange Offer Registration Statement that has
provided in writing to any Issuer a telephone or facsimile number and
address for notices, and, if requested by you or any such Holder or
Exchanging Dealer, shall confirm such advice in writing (which notice
pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction
to suspend the use of the Prospectus until the Issuers shall have remedied
the basis for such suspension):
(i) when a Registration Statement or any amendment thereto
has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by any Issuer of any notification with
respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation of
any proceeding for such purpose; and
(v) of the happening of any event that requires any change
in the Registration Statement or the Prospectus so that, as of such
date, the statements therein are not misleading and do not omit to
state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in the
light of the circumstances under which they were made) not
misleading; provided that such notice need not identify the reasons
for such event that requires such change in the Registration
Statement.
(c) The Issuers shall use their respective reasonable best efforts
to obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement or the qualification of the securities therein for
sale in any jurisdiction at the earliest possible time.
(d) The Issuers shall furnish to each Holder of Securities or
Exchange Securities covered by any Shelf Registration Statement, without
charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including,
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upon written request, all material incorporated therein by reference and
exhibits thereto (including exhibits incorporated by reference therein).
(e) The Issuers shall, during the Shelf Registration Period,
deliver to each Holder of Securities or Exchange Securities covered by any
Shelf Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such
Holder may reasonably request. The Issuers consent to the use of the
Prospectus or any amendment or supplement thereto by each of the selling
Holders of securities in connection with the offering and sale of the
securities covered by the Prospectus, or any amendment or supplement
thereto, included in the Shelf Registration Statement.
(f) The Issuers shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto,
including, upon written request, all material incorporated by reference
therein, and all exhibits thereto (including exhibits incorporated by
reference therein).
(g) The Issuers shall promptly deliver to each Initial Purchaser,
each Exchanging Dealer and each other Person required to deliver a
Prospectus during the Exchange Offer Registration Period, without charge,
as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as any such
Person may reasonably request. The Issuers consent to the use of the
Prospectus or any amendment or supplement thereto by any Initial
Purchaser, any Exchanging Dealer and any such other Person that may be
required to deliver a Prospectus following the Registered Exchange Offer
in connection with the offering and sale of the Exchange Securities
covered by the Prospectus, or any amendment or supplement thereto,
included in the Exchange Offer Registration Statement.
(h) Prior to the Registered Exchange Offer or any other offering
of Securities or Exchange Securities pursuant to any Registration
Statement, the Issuers shall arrange, if necessary, for the qualification
of the Securities or the Exchange Securities for sale under the laws of
such jurisdictions as any Holder shall reasonably request and will
maintain such qualification in effect so long as required; provided that
in no event shall any Issuer be obligated to qualify to do business in any
jurisdiction where it is not then so qualified or to take any action that
would subject it to taxation or service of process in suits, other than
those arising out of the Initial Placement, the Registered Exchange Offer
or any offering pursuant to a Shelf Registration Statement, in any such
jurisdiction where it is not then so subject.
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(i) The Issuers shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Exchange
Securities or Securities to be issued or sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as Holders may request.
(j) Upon the occurrence of any event contemplated by subsections
(b)(ii) through (v) above, the Issuers shall promptly prepare a
post-effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to Initial Purchasers,
the Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. In such circumstances, the period of effectiveness of the
Exchange Offer Registration Statement provided for in Section 2 hereof and
the Shelf Registration Statement provided for in Section 3(b) hereof shall
each be extended by the number of days from and including the date of the
giving of a notice of suspension pursuant to Section 4(b) hereof to and
including the date when the Initial Purchasers, the Holders and any known
Exchanging Dealer shall have received such amended or supplemented
Prospectus pursuant to this Section 4; provided that in no event shall the
Issuers be required to maintain the effectiveness of any Exchange Offer
Registration Statement or Shelf Registration Statement beyond the second
anniversary of the original issue date of the Securities. As soon as
practicable following receipt of notice from the Issuers in accordance
with Section 4(b) hereof, each Holder and Exchange Dealer agrees to
suspend use of the Prospectus until such Holder and Exchange Dealer
receive copies of the amended or supplemented Prospectus or until it
receives written notice from the Issuers that the use of the applicable
Prospectus may be resumed.
(k) Not later than the effective date of any Registration
Statement, the Issuers shall provide a CUSIP number for the Securities or
the Exchange Securities, as the case may be, registered under such
Registration Statement and provide the Trustee with printed certificates
for such Securities or Exchange Securities, in a form eligible for deposit
with The Depository Trust Company.
(l) Xxxxx or Finance Inc. shall comply with all applicable rules
and regulations of the Commission and make generally available
to its security holders as soon as practicable after the effective date of
the applicable Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the Act.
(m) The Issuers shall cause the Indenture to be qualified under
the Trust Indenture Act in a timely manner.
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(n) The Issuers may require each Holder of securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Issuers
such information regarding the Holder and the distribution of such
securities as the Issuers may from time to time reasonably require for
inclusion in such Registration Statement. The Issuers may exclude from
such Shelf Registration Statement the Securities or Exchange Securities of
any Holder that unreasonably fails to furnish such information within a
reasonable time after receiving such request.
(o) In the case of any Shelf Registration Statement, the Issuers
shall enter into such and take all other appropriate actions (including if
requested an underwriting agreement in customary form) in order to
expedite or facilitate the registration or the disposition of the
Securities or Exchange Securities, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set
forth in Section 6 (or such other provisions and procedures acceptable to
the Majority Holders and the Managing Underwriters, if any, with respect
to all parties to be indemnified pursuant to Section 6).
(p) In the case of any Shelf Registration Statement, the Issuers
shall:
(i) make reasonably available for inspection by the Holders
of Securities or Exchange Securities to be registered thereunder,
any underwriter participating in any disposition pursuant to such
Shelf Registration Statement, and any attorney retained by the
Holders or any such underwriter all relevant financial and other
records, pertinent corporate documents and properties of each Issuer
during normal business hours at the offices where such information
is typically kept;
(ii) cause the officers, directors and employees of each
Issuer to supply all relevant information reasonably requested by
the Holders or any such underwriter or attorney in connection with
any such Shelf Registration Statement as is customary for similar
due diligence examinations during normal business hours at the
offices where such information is typically kept; provided, however,
that any confidential information referred to in Section 4(p)(i)
above or this Section 4(p)(ii) shall be kept confidential by the
Holders or any such underwriter or attorney, unless such disclosure
is made in connection with a court proceeding or required by law, or
such information becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality; provided, further, that prior written notice shall
be provided as soon as practicable to the applicable Issuer of the
potential disclosure of any information in connection with a court
-15-
proceeding or required by law to permit such Issuer to obtain a
protective order or take such other action to prevent disclosure of
such information;
(iii) make such representations and warranties to the Holders
of Securities or Exchange Securities registered thereunder and the
underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary underwritten
offerings and covering matters including, but not limited to, those
set forth in the Purchase Agreement as may be reasonably requested;
(iv) obtain opinions of counsel to the Issuers and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters, if
any) addressed to each selling Holder (if then customary in
underwritten offerings) and the underwriters, if any, covering such
matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters;
(v) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of Xxxxx (and, if
necessary, any other independent certified public accountants of any
Issuer or any subsidiary of any Issuer or of any business acquired
by any Issuer for which financial statements and financial data are,
or are required to be, included in the Shelf Registration
Statement), addressed to the underwriters, if any, in customary form
and covering matters of the type customarily covered in "cold
comfort" letters in connection with primary underwritten offerings;
and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance with
Section 4(k) and with any customary conditions contained in the
underwriting agreement or other customary agreement entered into by
the Issuers.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section
4(p) shall be performed at each closing under any underwriting or similar
agreement as and to the extent required thereunder.
(q) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to Finance Inc. (or to such other
Person as directed by Finance Inc.) in exchange for the Exchange
Securities, Finance Inc. shall xxxx, or caused to be marked, on the
Securities so exchanged that such Securities are being
-16-
canceled in exchange for the Exchange Securities. In no event shall the
Securities be marked as paid or otherwise satisfied.
(r) The Issuers will use their respective reasonable best efforts
(i) if the Securities have been rated prior to the initial sale of such
Securities pursuant to the Purchase Agreement, to confirm such ratings
will apply to the Securities or the Exchange Securities, as the case may
be, covered by a Exchange Offer Registration Statement; or (ii) if the
Securities were not previously rated, to cause the Securities covered by a
Registration Statement to be rated with at least one nationally recognized
statistical rating agency, if so requested by Majority Holders with
respect to the related Registration Statement or by any Managing
Underwriters.
(s) In the event that any Broker-Dealer shall underwrite any
Securities or Exchange Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules of the National Association of
Securities Dealers, Inc. (the "Conduct Rules")) thereof, whether as a
Holder or as an underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, the Issuers shall assist such
Broker-Dealer in complying with the requirements of such Conduct Rules,
including, without limitation, by:
(i) if such Conduct Rules shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to
exercise usual standards of due diligence with respect thereto and,
if any portion of the offering contemplated by such Registration
Statement is an underwritten offering or is made through a placement
or sales agent, to recommend the yield of such Securities or
Exchange Securities;
(ii) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in
Section 6 hereof; and
(iii) providing such information to such Broker-Dealer as may
be required in order for such Broker-Dealer to comply with the
requirements of such Conduct Rules.
(t) The Issuers shall use their respective reasonable best efforts
to take all other steps necessary to effect the registration of the
Securities or the Exchange Securities, as the case may be, covered by a
Registration Statement.
5. Registration Expenses. The Issuers shall bear all expenses
incurred in connection with the performance of their obligations under Sections
2, 3 and 4 hereof, and, in
-17-
the event of any Shelf Registration Statement, will reimburse the Holders for
the reasonable fees and disbursements of one firm or counsel designated by the
Majority Holders to act as counsel for the Holders in connection therewith and,
in the case of any Exchange Offer Registration Statement, will reimburse the
Initial Purchasers for the reasonable fees and disbursements of such one firm or
counsel acting in connection therewith.
6. Indemnification and Contribution. (a) Finance Inc., Xxxxx and,
after becoming parties hereto as a result of executing and delivering the
Joinder Agreement, the Guarantors (collectively, all of the foregoing being
referred to as the "Xxxxx Parties") jointly and severally agree to indemnify and
hold harmless each Holder of Securities or Exchange Securities, as the case may
be, covered by any Registration Statement (including each Initial Purchaser and,
with respect to any Prospectus delivery as contemplated in Section 4(g) hereof,
each Exchanging Dealer), the directors, officers, employees and agents of each
such Holder and each Person who controls any such Holder within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal, state or foreign
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed or in any
amendment thereof, or in any preliminary prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or in any "wrapped" version thereof
constituting an offering memorandum under applicable Canadian securities laws,
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 jointly and severally agree to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the Xxxxx
Parties will not be liable in any case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to any Xxxxx
Party by or on behalf of any such Holder relating to such Holder specifically
for inclusion therein. This indemnity agreement will be in addition to any
liability which the Xxxxx Parties may otherwise have.
Each Xxxxx Party also jointly and severally agree to indemnify or
contribute as provided in Section 6(d) to Losses of each underwriter of
Securities or Exchange Securities, as the case may be, registered under a Shelf
Registration Statement, their directors, officers, employees or agents and each
Person who controls such underwriter on substantially the same basis as that of
the indemnification of the Initial Purchasers and the selling Holders provided
in this Section 6(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 4(o)
hereof.
-18-
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser and, with respect to any Prospectus delivery
as contemplated in Section 4(g) hereof, each Exchanging Dealer) severally agrees
to indemnify and hold harmless the Xxxxx Parties, each of their respective
directors, each of their respective officers who signs such Registration
Statement, and each Person who controls any Xxxxx Party within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Xxxxx Parties to each such Holder, but only with reference to
written information relating to such Holder furnished to the Xxxxx Parties by or
on behalf of such Holder specifically for inclusion in the documents referred to
in the foregoing indemnity. This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above 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) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ one firm of separate counsel (including one local
counsel firm), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with an actual conflict of interest; (ii) the actual or potential defendants in,
or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded,
based upon the advice of counsel, that there may be legal defenses available to
it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party; (iii) the indemnifying party shall
not have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the
institution of such action; or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the indemnifying
party. It is understood, however, that the indemnifying party shall, 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
circumstances, be liable
-19-
for the fees and expenses of only one firm of attorneys (in addition to local
counsel) at any time for all such indemnified parties. An indemnifying party
will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have a joint and several obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to which such indemnified party may be subject in such proportion as
is appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Registration Statement which resulted in such Losses;
provided, however, that in no case shall any Initial Purchaser or any subsequent
Holder of any Security or Exchange Security be responsible, in the aggregate,
for any amount in excess of the purchase discount or commission applicable to
such Security, or in the case of a Exchange Security, applicable to the Security
that was exchangeable into such Exchange Security, as set forth on the cover
page of the Final Memorandum, nor shall any underwriter be responsible for any
amount in excess of the underwriting discount or commission applicable to the
securities purchased by such underwriter under the Registration Statement which
resulted in such Losses. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Xxxxx Parties shall be deemed to be equal to the total net proceeds from
the Initial Placement (before deducting expenses) as set forth on the cover page
of the Final Memorandum. Benefits received by the Initial Purchasers shall be
deemed to be equal to the total purchase discounts and commissions as set forth
on the cover page of the Final Memorandum and benefits received by any other
Holders shall be deemed to be equal to the value of receiving Securities or
Exchange Securities, as applicable, registered under the Act. Benefits received
by any underwriter shall be deemed to be equal to the total underwriting
discounts and commissions, as set forth on the cover page of the Prospectus
forming a part of the Registration Statement which resulted in such Losses.
Relative fault shall be determined by reference to, among other things, whether
any alleged untrue statement or omission relates to information provided by the
indemnifying party, on the one hand, or by the indemnified party, on the other
hand,
-20-
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
parties agree that it would not be just and equitable if contribution were
determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6, each Person who controls a
Holder within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of such Holder shall have the same rights
to contribution as such Holder, and each Person who controls any Xxxxx Party
within the meaning of either the Act or the Exchange Act, each officer of any
Xxxxx Party who shall have signed the Registration Statement and each director
of any Xxxxx Party shall have the same rights to contribution as the Xxxxx
Parties, subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) The provisions of this Section 6 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
Finance Inc. and Xxxxx or any of the officers, directors or controlling Persons
referred to in this Section 6 hereof, and will survive the sale by a Holder of
securities covered by a Registration Statement.
7. Underwritten Registrations. (a) If any of the Securities or
Exchange Securities, as the case may be, covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the Managing
Underwriter(s) shall be selected by the Majority Holders and shall be reasonably
satisfactory to Xxxxx.
(b) No Person may participate in any underwritten offering
pursuant to any Shelf Registration Statement, unless such Person (i) agrees to
sell such Person's Securities or Exchange Securities, as the case may be, on the
basis reasonably provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
8. No Inconsistent Agreements. No Issuer has, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
9. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the
-21-
Issuers have obtained the written consent of the Majority Holders; provided
that, with respect to any matter that directly or indirectly affects the rights
of any Initial Purchaser hereunder, the Issuers shall obtain the written consent
of each of the Initial Purchasers against which such amendment, qualification,
supplement, waiver or consent is to be effective. Notwithstanding the foregoing
(except the foregoing proviso), a waiver or consent to departure from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Securities or Exchange Securities, as the case may be,
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect the rights of other Holders may be given by the Majority
Holders, determined on the basis of Securities or Exchange Securities, as the
case may be, being sold rather than registered under such Registration
Statement.
10. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such
holder to the Issuers in accordance with the provisions of this Section
10, which address initially is, with respect to each Holder, the address
of such Holder maintained by the Registrar under the Indentures, with a
copy in like manner to Xxxxxxx Xxxxx Xxxxxx Inc.;
(b) if to you, initially at the respective addresses set forth in
the Purchase Agreement; and
(c) if to the Issuers, initially at their address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given at the time delivered personally, if personally delivered; two
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day, if timely delivered to a nationally recognized air
courier guaranteeing overnight delivery.
The Initial Purchasers or the Issuers by notice to the other parties
may designate additional or different addresses for subsequent notices or
communications.
11. Successors. This Agreement shall inure to the benefit of and
be binding upon the successors and assigns of each of the parties hereto,
including, without the need for an express assignment or any consent by the
Issuers thereto, subsequent Holders of Securities and the Exchange Securities.
The Issuers hereby agree to extend the benefits of this Agreement to any Holder
of Securities or the Exchange Securities, and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
-22-
12. Counterparts. This Agreement may be in signed counterparts,
each of which shall be an original and all of which together shall constitute
one and the same agreement.
13. Headings. The headings used herein are for convenience only
and shall not affect the construction hereof.
14. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York.
15. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
16. Securities Held by the Issuers, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or Exchange Securities is required hereunder, Securities or Exchange Securities,
as applicable, held by any Issuers or its Affiliates (other than subsequent
Holders of Securities or Exchange Securities if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such Securities or
Exchange Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
17. Submission to Jurisdiction. By the execution and delivery of
this Agreement, each Issuer submits to the non-exclusive jurisdiction of any
federal or state court in the State of New York in any suit or proceeding
arising out of or relating to this Agreement or brought under federal or state
securities laws. By receiving the rights and benefits under this Agreement, each
Holder also submits to the non-exclusive jurisdiction of any federal or state
court in the State of New York in any suit or proceeding arising out of or
relating to this Agreement or brought under federal or state securities laws.
Xxxxx irrevocably appoints Xxxxx XX as its authorized agent in the Borough of
Manhattan in The City of New York upon which process may be served in any suit
or proceeding, and agrees that service of process upon such agent, and written
notice of said service to Xxxxx, by the person serving the same to the address
provided in Section 10, shall be deemed in every respect effective service of
process upon Xxxxx in any such suit or proceeding.
18. Termination. This Agreement shall automatically terminate if
Finance Inc. completes a Special Mandatory Redemption (as defined in the
Indenture).
-23-
[Signature Page Follows]
S-1
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Issuers, Xxxxx and the several Initial Purchasers.
Very truly yours,
XXXXX NORTH AMERICA FINANCE, INC.
By: /s/ Xxxxxx X. Xxxxxxx, III
------------------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: Chief Executive Officer
XXXXX CORPORATION LIMITED
By: /s/ Xxxxxx X. Xxxxxxx, III
------------------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: Executive Vice President
S-2
Xxxxxxx Xxxxx Barney Inc.
Deutsche Bank Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
By: Xxxxxxx Xxxxx Barney Inc.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
By: Deutsche Bank Securities Inc.
By: /s/ Xxxxxxxxx X. Madign
----------------------------------
Name: Xxxxxxxxx X. Madign
Title: Managing Director
By: /s/ Xxxxxxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxxxxxx Xxxxxxx
Title: Managing Director
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
For themselves and the other several Initial Purchasers named in Schedule I to
the foregoing Agreement.
SCHEDULE I
Initial Purchasers:
Xxxxxxx Xxxxx Barney Inc.
Deutsche Bank Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Banc One Capital Markets, Inc.
BNP Paribas Securities Corp.
CIBC World Markets Corp.
Credit Lyonnais Securities (USA) Inc.
Fleet Securities, Inc.
Scotia Capital (USA) Inc.
Sch. I-1
ANNEX A
Each Broker-Dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a Broker-Dealer in connection with resales of
Exchange Securities received in exchange for Securities where such Securities
were acquired by such Broker-Dealer as a result of market-making activities or
other trading activities. The Issuers have agreed that, starting on the
Expiration Date (as defined herein) and ending on the close of business 180 days
after the Expiration Date, they will make this Prospectus available to any
Broker-Dealer for use in connection with any such resale. See "Plan of
Distribution."
A-1
ANNEX B
Each Broker-Dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
B-1
ANNEX C
Plan of Distribution
Each Broker-Dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Issuers have agreed
that, starting on the Expiration Date and ending on the close of business 180
days after the Expiration Date, they will make this Prospectus, as amended or
supplemented, available to any Broker-Dealer for use in connection with any such
resale. In addition, until ___________, 200__, all dealers effecting
transactions in the Exchange Securities may be required to deliver a prospectus.
The Issuers will not receive any proceeds from any sale of Exchange
Securities by Broker-Dealers. Exchange Securities received by Broker-Dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such Broker-Dealer and/or the purchasers of any such
Exchange Securities. Any Broker-Dealer that resells Exchange Securities that
were received by it for its own account pursuant to the Exchange Offer and any
broker or dealer that participates in a distribution of such Exchange Securities
may be deemed to be an "underwriter" within the meaning of the Act and any
profit of any such resale of Exchange Securities and any commissions or
concessions received by any such Persons may be deemed to be underwriting
compensation under the Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act.
For a period of 180 days after the Expiration Date, the Issuers will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any Broker-Dealer that requests such documents
in the Letter of Transmittal. The Issuers have agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holder of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the holders of the Securities (including any
Broker-Dealers) against certain liabilities, including liabilities under the
Act.
C-1
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name: -----------------------------------------
Address: -----------------------------------------
-----------------------------------------
-----------------------------------------
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the Exchange Securities in the ordinary course of its business, it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities and it has no arrangements or understandings with any Person to
participate in a distribution of the Exchange Securities. If the undersigned is
a Broker-Dealer that will receive Exchange Securities for its own account in
exchange for Securities, it represents that the Securities to be exchanged for
Exchange Securities were acquired by it as a result of market-making activities
or other trading activities and acknowledges that it will deliver a prospectus
in connection with any resale of such Exchange Securities; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be deemed
to admit that it is an "underwriter" within the meaning of the Act.
D-1
