Exhibit 99.10
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of April 8, 2003, between CNH
Global N.V., a Netherlands corporation (the "Company"), on the one hand, and
Fiat S.p.A, an Italian corporation ("Fiat"), Sicind S.p.A, an Italian
corporation ("Sicind" and, together with Fiat, the "Affiliates"), and the other
Shareholders from time to time party hereto, on the other hand.
WHEREAS, the Affiliates together currently own 8,000,000 Series A
Automatic Convertible Perpetual Preferred Securities, par value (euro)2.25 per
share, with a liquidation preference of $250 per share, of the Company (the
"Preferred Shares") issued to them pursuant to the Issue and Subscription
Agreement dated as of April 3, 2003 and the Issue and Subscription Agreement
dated as of April 4, 2003 (collectively, the "Subscription Agreement") in each
case by and between the Affiliates and the Company;
WHEREAS, the Preferred Shares are convertible, under certain
conditions, into an aggregate of 100,000,000 shares (the "Shares") of common
stock (or such other number as may result from the application of the anti
dilution adjustments set forth in the resolution of the Board of Directors
containing the terms and conditions of the Preferred Shares), par value
(euro)2.25 per share, of the Company (the "Common Shares");
WHEREAS, the Company and the Affiliates desire to have the Preferred
Shares and the Shares issuable upon conversion of the Preferred Shares be
subject to the rights described herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
1. Definitions. As used herein, the following terms shall have the
following meanings:
"Agreement" shall mean this Registration Rights Agreement, as amended,
supplemented or otherwise modified from time to time.
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which the New York Stock Exchange (or, if different, the principal
exchange on which the Common Shares are traded) is not open for trading.
"Commission" shall mean the Securities and Exchange Commission.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Exchange Act" shall mean the U.S. Securities Exchange Act of 1934, as
amended from time to time.
"Permitted Transferee" shall mean any affiliate of either of the
Affiliates and any other Person to which Registrable Securities are transferred
in compliance with Section 13 hereof or any Subsidiary of Fiat.
"Person" means any individual, corporation, partnership, limited
partnership, limited liability partnership, limited liability company, trust,
association, organization or other entity.
"Prospectus" shall mean the prospectus included in any Registration
Statement, including any preliminary prospectus, and any such prospectus as
supplemented by any prospectus supplement with respect to the terms of the
offering of any of the Registrable Securities, and by all other amendments and
supplements to such prospectus, and in each case including all documents
incorporated by reference therein.
"Register", "Registered" and "Registration" refer to a registration of
Registrable Securities effected by preparing and filing a Registration Statement
in compliance with the Securities Act and the declaration or ordering of the
effectiveness of such Registration Statement.
"Registrable Securities" shall mean (i) the Preferred Securities, (ii)
the Shares to be received by the Shareholder pursuant to the conversion of the
Preferred Shares and (iii) any securities of the Company issued or issuable with
respect to any Registrable Securities referred to in clauses (i) or (ii) by way
of stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise. As
to any particular Registrable Securities, such securities shall cease to be
Registrable Securities when (w) a Registration Statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such Registration
Statement, (x) they shall have been distributed pursuant to Rule 144 or Rule 145
(or any successor provision) under the Securities Act, (y) they shall have been
otherwise transferred and (A) new certificates for them not bearing a legend
restricting transfer under the Securities Act shall have been delivered by the
Company and (B) they may be publicly resold (without volume or method of sale
restrictions) without registration under the Securities Act, or (z) they shall
have ceased to be outstanding. For purposes of this Agreement, a "class" of
Registrable Securities shall mean all Securities with the same terms, provided
that, for the avoidance of doubt, in the case of the Shares, the class shall
refer only to the Shares, and shall not include any Common Shares other than
those issued or issuable upon conversion of the Preferred Shares.
"Registration Expenses" shall mean all fees and expenses incident to
the performance of or compliance with this Agreement as may reasonably be
incurred by the Company for the registration, approval and/or sale of any
Registrable Securities pursuant to this Agreement, including, without
limitation, all registration, filing and National Association of Securities
Dealers, Inc. fees, all fees and expenses of complying with securities or blue
sky laws (including without limitation the filing and examination fees under
state securities laws, and such other fees and expenses as may be reasonably
incurred by the Company for the registration, approval and issuance of the
Registrable
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Securities under various blue sky laws), all word processing, duplicating and
printing expenses, messenger and delivery expenses, the fees and disbursements
of counsel for the Company and of its independent public accountants, including
the expenses of any special audits or "comfort" letters required by or incident
to such performance and compliance, premiums and other costs of policies of
insurance obtained by the Company against liabilities arising out of the public
offering of Registrable Securities being registered, any fees and disbursements
of underwriters, all underwriting discounts and commissions payable by the
holders or otherwise and transfer stamp taxes, if any, relating to Registrable
Securities or this Agreement and any other registration expenses incident to the
registration of the Registrable Securities issued to the Shareholder.
"Registration Statement" shall mean a registration statement of the
Company on Form F-3 (or, if the Company is not then eligible for Form F-3, such
other form for which the Company then qualifies) that is filed by the Company
with the Commission in accordance with Section 2 below. The term "Registration
Statement" shall also include all exhibits and financial statements and
schedules and documents incorporated by reference in such Registration Statement
when it becomes effective under the Securities Act, and in the case of
references to a Registration Statement as of a date subsequent to the effective
date, as amended or supplemented as of such date.
"Securities Act" shall mean the U.S. Securities Act of 1933, as amended
from time to time.
"Shareholder" means each of the Affiliates and, except where the
context clearly indicates otherwise, includes any other Person (including
without limitation any Permitted Transferee):
(i) to whom any Registrable Securities or any rights to acquire any
Registrable Securities are transferred by any Person that was, immediately prior
to such transfer, a Shareholder;
(ii) who continues to hold such Registrable Securities or the right to
acquire such Registrable Securities; and
(iii) to whom the transferring Shareholder has assigned any of its
rights under this Agreement, in whole or in part, in accordance with the
provisions of Section 13 of this Agreement with respect to such Registrable
Securities;
"Subsidiary" means, with respect to any Person, (i) a corporation more
than 50% of the outstanding voting stock of which is owned, directly or
indirectly, by such Person or by one or more other Subsidiaries of such Person,
or by such Person and one or more other Subsidiaries of such Person, (ii) a
partnership in which such Person or a Subsidiary of such Person holds a majority
interest in the equity capital or profits of such partnership, or (iii) any
other Person (other than a corporation or a partnership) in which such Person, a
Subsidiary of such Person or such Person and one or more Subsidiaries of such
Person, directly or indirectly, at the date of determination, has (x) at
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least a majority ownership interest or (y) the power to elect or direct the
election of a majority of the directors or other governing body of such other
Person.
"Underwritten Offering" means a registration in which securities of the
Company are sold to an underwriter or underwriters on a firm commitment basis
for reoffering to the public.
(b) Capitalized terms used herein but not otherwise defined herein
shall have the same meaning as in the Subscription Agreement. Terms defined in
the singular shall have a comparable meaning when used in the plural, and vice
versa. All matters of an accounting nature in connection with this Agreement and
the transactions contemplated hereby shall be determined in accordance with U.S.
generally accepted accounting principles as in effect from time to time. As used
herein, the neuter gender shall also denote the masculine and feminine, and the
masculine gender shall also denote the neuter and feminine, where the context so
permits. The words "hereof," "herein" and "hereunder", and words of similar
import, when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and section, subsection,
paragraph, schedule and exhibit references are to this Agreement unless
otherwise specified.
2. Registration Rights.
(a) Demand Registration. (i) Upon receipt of a request for Registration
hereunder from (A) any Affiliate (or any affiliate thereof) or (B) any other
Shareholder or Shareholders holding in the aggregate not less than 25% of the
number of shares of any class of the Registrable Securities (a "25%
Shareholder," and together with any Affiliate or any affiliate thereof, a
"Requesting Party"), the Company shall, with respect to any request received
from a Requesting Party (or Parties), subject to the terms and conditions of
this Agreement, prepare and file with the Commission, and use commercially
reasonable efforts to have declared effective a Registration Statement under the
Securities Act relating to the offer and sale by the Requesting Party (or
Parties) specified in such request through such method or methods of
distribution as specified in such request and otherwise in accordance with this
Agreement, of the Registrable Securities specified in such request; provided,
that the Shareholders shall be permitted to make only four requests for
Registration hereunder and the Company shall not be required to prepare and file
more than four Registration Statements pursuant to this Agreement, provided
further, that the Company may satisfy its obligations under this Section 2(a) by
(i) filing a shelf Registration Statement on Form F-3 (a "Shelf Registration
Statement") under the Securities Act relating to the offer and sale by the
Shareholder(s) at any time and from time to time on a delayed or continuous
basis in accordance with Rule 415 under the Securities Act, through such method
or methods of distribution as the Requesting Party (or Parties) shall select, of
all of the Registrable Securities and (ii) using commercially reasonable efforts
to keep such Shelf Registration Statement effective under the Securities Act for
so long as permitted by Rule 415 under the Securities Act or, if earlier, until
such time as no Shareholder owns any Registrable Securities. In the event that
the Company elects to satisfy its obligations under this Section 2(a) by filing
a Shelf Registration Statement, then Shareholders shall not be permitted to make
any further
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requests for Registration hereunder and the Company shall not be required to
prepare or file further Registration Statements pursuant to this Agreement,
provided that all of the Registrable Securities have been registered thereunder
or have otherwise become freely tradable under applicable securities laws.
(ii) Within five days following receipt of any request for a
Registration, the Company shall deliver written notice of such request to
all other holders of Registrable Securities of the class or classes to be
registered. Thereafter, the Company shall include in such Registration any
additional Registrable Securities of each such class which the holder or
holders thereof have requested in writing be included in such Registration,
provided that all requests therefor have been received by the Company
within ten days of the Company's having sent the applicable notice to such
holder or holders. All such requests shall specify the aggregate amount and
class of Registrable Securities to be registered and the intended method of
distribution of the same.
(iii) The Issuer shall be deemed to have effected a Registration if
the applicable Registration Statement is declared effective by the SEC and
remains effective for not less than 180 days (or such shorter period as
will terminate when all Registrable Securities covered by such Registration
Statement have been sold or withdrawn), or, if such Registration Statement
relates to an Underwritten Offering, such longer period as, in the opinion
of counsel for the underwriter or underwriters, is required by law for the
delivery of a Prospectus in connection with the sale of Registrable
Securities by an underwriter or dealer.
(b) Expenses. The Registration Expenses in connection with the any
registration effected pursuant to this Section 2 shall be borne by the Company.
3. Registration Procedures. If the Company is required to file a
Registration Statement to Register Registrable Securities under the Securities
Act as provided in Section 2, the Company will:
(i) prepare and within 60 days of the receipt of a request for
Registration file with the Commission the Registration Statement required
pursuant to Section 2, and use commercially reasonable efforts to cause
such Registration Statement to become effective as promptly as practicable
thereafter. Prior to filing such Registration Statement or any amendments
thereto with the Commission, the Company shall furnish to one counsel
selected by the requesting Shareholder(s) copies of all such documents
proposed to be filed, which documents will be subject to the review of such
counsel before any such filing is made, and the Company will comply with
any reasonable request made by such counsel to make changes in any
information contained in such documents;
(ii) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the Prospectus used in
connection therewith as may be reasonably requested by any participating
Shareholder (to the extent such request relates to information relating to
such holder) or as may be
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necessary to maintain the effectiveness of such registration and to comply
with the provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement until the earliest
of (A) the termination of this Agreement pursuant to Section 18 and (B)
such time as all of such securities have been disposed of;
(iii) furnish to the Shareholder(s) such number of conformed copies of
such Registration Statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
Prospectus contained in such Registration Statement and any supplements
thereto and any other Prospectus filed under Rule 424 under the Securities
Act, in conformity with the requirements of the Securities Act, and such
other documents, including documents incorporated by reference, as the
Shareholder(s) may reasonably request;
(iv) use commercially reasonable efforts to register or qualify all
Registrable Securities registered pursuant to such Registration Statement
under such other securities or blue sky laws of such jurisdictions as the
Shareholder(s) shall reasonably request, to keep such registration or
qualification in effect for so long as such Registration Statement remains
in effect, and take any other action which may be reasonably necessary or
advisable to enable the Shareholder to consummate the disposition in such
jurisdictions of the securities owned by the Shareholder(s), except that
the Company shall not for any such purpose be required to qualify generally
to do business as a foreign corporation in any jurisdiction wherein it
would not but for the requirements of this clause (iv) be obligated to be
so qualified, to be subject to taxation generally or to consent to general
service of process in any such jurisdiction;
(v) use commercially reasonable efforts to cause all Registrable
Securities covered by such Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the Shareholder to consummate the disposition of such
Registrable Securities;
(vi) notify the selling holders of Registrable Securities and the
managing underwriter or underwriters, if any, and (if requested) confirm
such advice in writing, as soon as reasonably practicable after notice
thereof is received by the Company (A) when the applicable Registration
Statement or any amendment thereto has been filed or becomes effective and
when the applicable Prospectus or any amendment or supplement thereto has
been filed, (B) of any written comments by the SEC or any request by the
SEC or any other federal or state governmental authority for amendments or
supplements to such Registration Statement or Prospectus or the documents
incorporated by reference therein or for additional information, (C) of the
issuance by the SEC of any stop order suspending the effectiveness of such
Registration Statement or any order preventing or suspending the use of any
preliminary or final Prospectus or the initiation or threat of any
proceedings for such purposes and (D) of the receipt by
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the Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for offering or sale in any
jurisdiction or the initiation or threat of any proceeding for such
purpose;
(vii) promptly notify the Shareholder at any time when the Company
becomes aware that a Prospectus relating to Registrable Securities is
required to be delivered under the Securities Act, of the happening of any
event as a result of which the Prospectus included in such Registration
Statement, as then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and, at the request of the
Shareholder and subject to Section 4(b)(i) and Section 8 hereof, promptly
prepare and furnish to the Shareholder a reasonable number of copies of a
supplement to or an amendment of such Prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such securities, such
Prospectus shall not include 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 not misleading in the light of the circumstances
under which they were made;
(viii) make every reasonable effort to prevent or obtain at the
earliest possible moment the withdrawal of any stop order with respect to
the applicable Registration Statement or other order suspending the use of
any preliminary or final Prospectus;
(ix) otherwise use commercially reasonable efforts to comply with the
Securities Act and the Exchange Act and with all applicable rules and
regulations of the Commission, and consider any suggestions of the
Shareholder with respect to such Registration Statement or Prospectus to
ensure such compliance;
(x) provide a transfer agent and registrar for all Registrable
Securities covered by the Registration Statement not later than the
effective date of the Registration Statement;
(xi) use commercially reasonable efforts to list all Registrable
Securities of a class covered by such Registration Statement on any
securities exchange on which any of the Company's securities of such class
are then listed or quoted; and
(xii) upon the reasonable request of the Shareholder, otherwise use
all reasonable efforts to effect the registration of Registrable Securities
under the Securities Act as provided in Section 2.
4. Shareholder's Obligations.
(a) Furnishing Information. The Shareholder shall furnish to the
Company such information regarding the Shareholder and the distribution proposed
by it as the Company may reasonably request, including, without limitation,
providing the Company with questionnaires as are customary for similar
transactions, and which the
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Company may reasonably request or as may be required by applicable securities
laws and regulations, and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement. The
Shareholder agrees to notify the Company as promptly as practicable of any
inaccuracy or change in information previously furnished to the Company or of
the happening of any event, in either case as a result of which any Prospectus
relating to such registration contains an untrue statement of a material fact
regarding the Shareholder or the distribution of such Registrable Securities or
omits to state any material fact regarding the Shareholder or the distribution
of such Registrable Securities 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, and to furnish to the Company promptly any additional
information required to correct and update any previously furnished information
or required such that such Prospectus shall not contain, with respect to the
Shareholder or the distribution of such Registrable Securities, 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.
(b) Blackouts.
(i) The Company may, by written notice to the Shareholder, postpone
any registration which is requested pursuant to Section 2 or delivery of a
Prospectus pursuant to Section 3(iv), suspend sales under a Registration
Statement filed hereunder or defer the updating of such filed Registration
Statement if (A) the Company reasonably believes that the use or updating
of such Registration Statement or such sale, as the case may be, would
require disclosure of a material non-public corporate development not
otherwise required to be disclosed that the Company has a valid business
purpose for not disclosing, (B) the Company is in the process of making, or
preparing to make, a registered offering of securities that are the same
as, similar to or convertible into or exchangeable or exercisable for the
Shareholder securities with respect to which postponement, suspension or
deferral is being made and the Company reasonably deems it advisable to
temporarily discontinue disposition of securities by the Shareholder, or
(C) the Company reasonably believes that disposition of securities by the
Shareholder at such time would materially interfere with the business
activities or plans of the Company for the shortest period of time
determined in good faith by the Company to be necessary for such purpose;
provided, however, that the Company shall not be permitted to make such
suspension or deferral (A) more than 2 times during any 12-month period,
(B) for a period exceeding 60 days on any one occasion or (C) for a period
exceeding 90 days in any 12-month period. In the event the Company makes
any such election, the Shareholder agrees to keep confidential the fact of
such election and any information provided by the Company in connection
therewith, including, without limitation, information regarding the
Company's own capital-raising activities and plans. The Company shall
immediately notify the holders upon the expiration of any period during
which it exercised its right under this Section 4(b)(i).
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(ii) Notwithstanding the blackout rights set forth above in Section
4(b)(i), the Company may not exercise any blackout rights for a period of
ten Business Days commencing on the effective date of any Registration
Statement.
5. Registration Statement. In connection with the preparation and
filing of a Registration Statement under the Securities Act, the Company shall:
(a) give the Shareholder and its counsel the opportunity to participate
in the preparation of such Registration Statement, each Prospectus included
therein or filed with the Commission, and each amendment thereof or supplement
thereto; and
(b) provide to a Shareholder or any other Person who participates as an
underwriter and its counsel in connection with the offering and sale of
Registrable Securities reasonable and customary due diligence, including review
of records and access to management and the Company's independent auditors.
6. Indemnification.
(a) Indemnification by the Company. In the event of any Registration of
any Registrable Securities of the Company under the Securities Act, the Company
will, and hereby does, to the fullest extent permitted by law, indemnify and
hold harmless each Shareholder and its respective directors, officers, agents
and employees, each other Person who participates as an underwriter in the
offering or sale of such Registrable Securities and each other Person who
controls such Shareholder or any such underwriter within the meaning of the
Securities Act or Exchange Act, against any losses, claims, damages,
liabilities, joint or several, to which such Shareholder or any such underwriter
or controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement under which such
Registrable Securities were registered under the Securities Act, any Prospectus
contained therein, or any amendment or supplement thereto, or any document
incorporated by reference therein or any 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 the Company will reimburse the
Shareholder and its respective directors, officers, agents and employees and
each such underwriter and controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceedings (such reimbursement to be
made as such expenses are incurred); provided that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon (i) an untrue statement or alleged untrue statement or omission
or alleged omission made in such Registration Statement or any amendment
thereto, any such Prospectus or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by the Shareholder
for use in the preparation thereof, (ii) the use of any Prospectus after
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such time as the obligation of the Company to keep the same effective and
current has expired, or (iii) the use of any Prospectus after such time as the
Company has advised the Shareholder in writing that the filing of a
post-effective amendment to the Registration Statement or supplement to the
Prospectus is required, except such Registration Statement as so amended or such
Prospectus as so supplemented, and provided further that the Company shall not
be liable to any Person who participates as an underwriter in the offering or
sale of Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of the matters described in (i), (ii) or
(iii) above or such Person's failure to send or give a copy of the final
Prospectus or supplement to the Persons asserting an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final Prospectus or supplement and
the Company had provided a reasonable number of copies of such final Prospectus
or supplement to such Underwriter for delivery. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
the Shareholder or any such underwriter or controlling person and shall survive
the transfer of such securities by the Shareholder. The Company's indemnity
hereunder shall relate only to the Registrable Securities, and the Company shall
otherwise have no indemnity obligations with respect to other securities of the
Company sold by the Shareholder or the registration thereof.
(b) Indemnification by the Shareholder. Each Shareholder will, and
hereby does, indemnify and hold harmless (in the same manner and to the same
extent as set forth in subdivision (a) of this Section 6) the Company, each
director and officer of the Company, and each other Person, if any, who controls
the Company within the meaning of the Securities Act and Exchange Act, with
respect to any untrue statement or alleged untrue statement of a material fact
in or omission or alleged omission to state a material fact from such
Registration Statement, any Prospectus contained therein, or any amendment or
supplement thereto, if 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 the Shareholder for use in the
preparation of such Registration Statement or amendment thereto or Prospectus or
supplement thereto; provided, however, that the Shareholder shall not be liable
to the extent that the losses, liabilities or expenses arise out of or are based
upon (i) the use by the Company of any Prospectus after such time as the
obligation of the Company to keep the same effective and current has expired or
(ii) the use by the Company of any Prospectus after such time as the Shareholder
has advised the Company in writing that the filing of a post-effective amendment
to the Registration Statement or supplement to the Prospectus is required with
respect to any information contained in such Registration Statement or
Prospectus concerning the Shareholder, except such Registration Statement as so
amended or such Prospectus as so supplemented. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
the Company, or any such director, officer, or controlling person and shall
survive the transfer of such securities by the Shareholder. In no event shall
the liability of any Shareholder hereunder be greater in amount than the dollar
amount of the net proceeds received by such Shareholder from the sale of the
Registrable Securities giving rise to such indemnification obligation.
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(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding subdivisions of this Section 6, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under the preceding subdivisions of this Section 6, except to the extent that
the indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, the
indemnifying party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to the indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. If the
indemnifying party assumes the defense, the indemnifying party shall have the
right to settle such action without the consent of the indemnified party;
provided, however, that the indemnifying party shall be required to obtain such
consent (which consent shall not be unreasonably withheld) if the settlement
includes any admission of wrongdoing on the part of the indemnified party or any
restriction on the indemnified party or its officers or directors. No
indemnifying party shall consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to each indemnified party of an unconditional release
from all liability in respect to such claim or litigation.
(d) Contribution. If for any reason the foregoing indemnity is
unavailable, or is insufficient to hold harmless an indemnified party, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of the expense, loss, damage or liability, (i) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other
(determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission relates to information supplied
by the indemnifying party or the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission), or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, in the proportion as
is appropriate to reflect not only the relative fault of the indemnifying party
and the indemnified party, but also the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other (which
benefits in the case of the Company shall be deemed to include the retirement of
the Debt), as well as any other relevant equitable considerations. No
indemnified party guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
indemnifying party who was not guilty of such fraudulent misrepresentation.
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7. Covenants Relating to Rules 144/145 and 144A. (a) The Company will
prepare and file in a timely manner, information, documents and reports in
compliance with the Exchange Act so as to comply with the Securities Act and the
requirements of such Acts and the rules and regulations thereunder and will, at
its expense, forthwith upon the request of the Shareholder, deliver to the
Shareholder a certificate, signed by the Company's principal financial officer
or his designee, stating (a) the Company's name, address and telephone number
(including area code), (b) the Company's Internal Revenue Service identification
number, (c) the Company's Commission file number, (d) the number of Series A
Preference Shares and Common Shares outstanding as shown by the most recent
report or statement published by the Company, and (e) whether the Company has
filed the reports required to be filed under the Exchange Act for a period of at
least 90 days prior to the date of such certificate and in addition has filed
the most recent annual report required to be filed thereunder. If at any time
the Company is not required to file reports in compliance with either Section 13
or Section 15(d) of the Exchange Act, the Company at its expense will forthwith,
upon the written request of the Shareholder, make publicly available such
information with respect to the Company as is required by paragraph (c)(2) of
Rule 144 and Rule 144A(d)(4) so long as necessary to permit sales pursuant to
Rule 144 or Rule 144A, as applicable, and it will take such further action as
any Shareholder may reasonably request, all to the extent required from time to
time to enable such Shareholder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 or Rule 144A or Regulation S under the Securities Act,
as such Rules may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC.
(b) In the event a Requesting Party (or Parties) determines to sell
such Registrable Securities without registration under the Securities Act within
the limitation of the exemption provided by Rule 144 or Rule 144A or Regulation
S under the Securities Act, as such rules may be amended from time to time, or
another exemption under the Securities Act, the Company agrees that it shall use
reasonable commercial efforts to cooperate with such Requesting Party (or
Parties), in facilitating such sale, including by entering into such agreements
(including a placement or other agreement) or preparing such documents,
including without limitation a preliminary offering circular, an offering
circular and/or any amendment or supplement thereto, or any supplement to this
Agreement, as such Requesting Party (or Parties) shall reasonably request. Any
such agreement or document shall, where appropriate, contain provisions
substantially similar to those set forth herein, including those regarding
payment of expenses, indemnities and contribution, provision of information and
governing law. The Company further agrees to provide such representations and
warranties to such Requesting Party (or Parties) or its third-party transferee
as may be required to permit sales of Registrable Securities in a private
placement or pursuant to Rule 144A.
(c) So long as any of the Registrable Securities are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act, the
Company will, during any period in which it is not subject to and in compliance
with Section 13 or 15(d) of the Exchange Act or it is not exempt from such
reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under
the Exchange Act, provide to each
12
holder of such restricted securities and to each prospective purchaser (as
designated by such holder) of such restricted securities, upon the request of
such holder or prospective purchaser, any information required to be provided by
Rule 144A(d)(4) under the Securities Act. This covenant is intended to be for
the benefit of the holders, and the prospective purchasers designated by such
holders, from time to time of such restricted securities.
8. Limitation of Registration Rights. If requested by the underwriters
for any Underwritten Offering, the Company and the Shareholder(s) of Registrable
Securities to be included therein shall enter into an underwriting agreement
with such underwriters, such agreement to be reasonably satisfactory in
substance and form to the Company, the holders of a majority of each class of
the Registrable Securities to be included in such Underwritten Offering and the
underwriters, and to contain such terms and conditions as are generally
prevailing in agreements of that type, including, without limitation, customary
provisions regarding comfort letters, opinions of outside legal counsel and
indemnities and provisions for contribution no less favorable to the recipient
thereof than those provided in Section 6 hereof. The Shareholder(s) of any
Registrable Securities to be included in any Underwritten Offering pursuant
hereto shall enter into such an underwriting agreement at the request of the
Company.
9. Notices, Etc. All notices, requests, demands or other communications
required by or otherwise with respect to this Agreement shall be in writing and
shall be deemed to have been duly given to any party when delivered personally
(by courier service or otherwise), when delivered by telecopy if receipt is
confirmed by return telecopy, or five days after being mailed by registered or
certified mail, return receipt requested, in each case to the applicable
addresses set forth below:
If to Fiat:
Fiat S.p.A.
Xxx Xxxxx, 000
00000 Xxxxx
Attention: Xxxxxxxxx Xxxxx
Facsimile: 39-011-0063-330
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Facsimile: 212-225-3999
And with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Main Tower
Neue Mainzer Strasse 52
13
60311 Frankfurt am Main
Attention: Xxxxxxx X. Xxxxxxxxxxx, Esq.
Fax: 00 00 0000 0000
If to Sicind:
Sicind S.p.A.
Xxxxx Xxxxxxxx 000X
00000 Xxxxx
Attention: Xxxxxxxxx Xxxxx
Facsimile: 39-011-0063-330
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Facsimile: 212-225-3999
And with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Main Tower
Neue Xxxxxxx Xxxxxxx 00
00000 Xxxxxxxxx xx Xxxx
Attention: Xxxxxxx X. Xxxxxxxxxxx, Esq.
Fax: 00 00 0000 0000
If to the Company:
CNH Global N.V.
Global Management Xxxxxx
000 Xxxxx Xxxxxxxx Xxxx
Xxxx Xxxxxx, Xxxxxxxx 00000 XXX
Attention: General Counsel
Facsimile: x0 000 000 0000
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
14
Attention: Xxxxxxxxxxx X. Xxxx, Esq.
Facsimile: x0 000 000 0000
or to such other address as such party shall have designated by notice
so given to each other party.
10. Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated except by an
instrument in writing signed by the party against whom enforcement is sought or
as expressly provided in Section 18. The failure of any party to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
11. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties relating to the subject matter hereof and
supersedes all prior agreements and understandings relating to such subject
matter.
12. Severability. If any term of this Agreement or the application
thereof to any party or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such term to
the other parties or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by applicable law.
13. Successors and Assigns. The registration rights of any Shareholder
under this Agreement with respect to any Registrable Securities may be
transferred and assigned, provided, however, that no such assignment shall be
binding upon or obligate the Company to any such assignee unless and until (i)
the Company shall have received notice of such assignment as herein provided and
an executed counterpart of this Agreement or other written agreement of the
assignee to be bound by the provisions of this Agreement. Any transfer or
assignment made other than as provided in the first sentence of this Section
shall be null and void. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto, and their respective successors and permitted
assigns.
14. Governing Law. This Agreement and all disputes hereunder shall be
governed by and construed and enforced in accordance with the laws of the State
of New York.
15. Submission to Jurisdiction. Any legal action or proceeding with
respect to this Agreement may be brought in the courts of the State of New York
or of the United States of America for the Southern District of New York, and,
by execution and delivery of this Agreement, the Company and the Shareholder
each hereby accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts and appellate courts
from any thereof. Each of the Company and the
15
Shareholder hereby irrevocably consents to the service of process out of any of
the aforementioned courts in any action or proceeding by the mailing of copies
thereof to the Company or the Shareholder, as the case may be, by registered or
certified mail, postage prepaid, return receipt requested, to such party at its
address specified in Section 9 and the Company has appointed Xxxxxxx Xxxxxx,
Senior Vice President, General Counsel and Secretary of the Company, and Xxxx
Xxxxxxx, Senior Counsel Corporate Governance and Assistant Secretary of the
Company, individually and severally, as agent for service of process of the
Company in connection with the Registration Statement and any and all amendments
(including without limitation, post-effective amendments) and supplements
thereto, with all powers incident to such appointment. The parties hereto hereby
irrevocably waive any objection, including, without limitation, any objection to
the laying of venue or based on the grounds of forum non conveniens, which it
may now or hereafter have to the bringing of any such action or proceeding in
such respective jurisdictions.
16. Name, Captions. The name assigned this Agreement and the section
captions used herein are for convenience of reference only and shall not affect
the interpretation or construction hereof.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
18. Termination. This Agreement shall terminate and be of no further
force and effect upon the disposition of all securities covered by each
Registration Statement filed pursuant to the provisions hereof; provided,
however, that, notwithstanding this Section 18, the provisions of Section 6
shall survive the termination of this Agreement.
16
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
FIAT S.P.A.
By: /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
Title: Senior Vice President and
General Counsel
SICIND S.P.A.
By: /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
Title: Chairman
CNH GLOBAL N.V.
By: /s/ Paolo Monferino
---------------------------------
Name: Paolo Monferino
Title: Chief Executive Officer
17
