EXHIBIT 4.6
EXECUTION COPY
THE INTERPUBLIC GROUP OF COMPANIES, INC.
Zero-Coupon Convertible Senior Notes Due 2021
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as
of December 14, 2001 by and between The Interpublic Group of Companies, Inc., a
Delaware corporation (the "Company"), and Xxxxxxx Xxxxx Xxxxxx Inc., as
representative of the initial purchasers (the "Initial Purchasers"), pursuant to
the Purchase Agreement, dated as of December 10, 2001, between the Company and
the Initial Purchasers (the "Purchase Agreement"). In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Company has agreed
to provide the registration rights set forth in this Agreement. The execution of
this Agreement is a condition to the closing under the Purchase Agreement.
1. Certain Definitions.
For purposes of this Registration Rights Agreement, the following
terms shall have the following meanings:
(a) "Accreted Value" means, as of any date of determination, with
respect to each $1,000 principal amount at maturity of Notes, (i) the
sum of the initial issue price of such Notes ($819.14) plus accrued
original issue discount with respect to such Notes through such date
of determination or, if no Notes are then outstanding, such sum
calculated as if Notes were then outstanding, or (ii) if the Notes
have been converted to semiannual cash pay notes after a Tax Event (as
defined in the Indenture), the Restated Principal Amount (as defined
in the Indenture).
(b) "Additional Amounts" has the meaning assigned thereto in
Section 2(d).
(c) "Applicable Conversion Price" means, as of any date of
determination, the Accreted Value per $1,000 principal amount at
maturity of Notes as of such date of determination divided by the
Conversion Rate in effect as of such date of determination or, if no
Notes are then outstanding, the Conversion Rate that would be in
effect were Notes then outstanding.
(d) "Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking institutions in
The City of New York are authorized or obligated by law or executive
order to close.
(e) "Closing Date" means the date on which the Notes are
initially issued.
(f) "Commission" means the Securities and Exchange Commission, or
any other federal agency at the time administering the Exchange Act or
the Securities Act, whichever is the relevant statute for the
particular purpose.
(g) "Conversion Rate" shall have the meaning assigned such term
in the Indenture.
(h) "Deferral Notice" has the meaning assigned thereto in Section
3(b).
(i) "Deferral Period" has the meaning assigned thereto in Section
3(b).
(j) "Effective Time" means the time and date as of which the
Commission declares the Shelf Registration Statement effective or as
of which the Shelf Registration Statement otherwise becomes effective.
(k) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
(l) "Holder" means each Initial Purchaser for so long as it owns
any Registrable Securities, and such of its respective successors and
assigns who acquire Registrable Securities, directly or indirectly,
from such person or from any successor or assign of such person, in
each case for so long as such person owns any Registrable Securities.
(m) "Indenture" means the Indenture dated as of October 20, 2000,
between the Company and The Bank of New York, as Trustee, as amended
and supplemented by the Second Supplemental Indenture thereto, dated
as of December 14, 2001, pursuant to which the Notes are being issued.
(n) "Material Event" has the meaning assigned thereto in Section
3(a)(iv).
(o) "Notes" means the Zero-Coupon Convertible Senior Notes Due
2021, to be issued under the Indenture and sold by the Company to the
Initial Purchasers, and securities (other than the Shares) of the
Company issued in exchange therefor or in lieu thereof pursuant to the
Indenture.
(p) "Notice and Questionnaire" means a written notice delivered
to the Company containing substantially the information called for by
the Form of Selling Securityholder Notice and Questionnaire attached
as Annex A to the Offering Memorandum.
(q) "Notice Holder" means, on any date, any Holder that has
delivered a Notice and Questionnaire to the Company on or prior to
such date.
(r) "Offering Memorandum" means the Offering Memorandum dated
December 10, 2001 relating to the offer and sale of the Securities.
(s) "Person" means a corporation, association, partnership,
organization, business, individual, government or political
subdivision thereof or governmental agency.
(t) "Prospectus" means the prospectus included in any Shelf
Registration Statement, as amended or supplemented by any amendment or
prospectus supplement, including post-effective amendments, and all
materials incorporated by reference or explicitly deemed to be
incorporated by reference in such Prospectus.
(u) "Purchase Agreement" has the meaning specified in the first
paragraph of this Agreement.
(v) "Registrable Securities" means the Securities; provided,
however, that such Securities shall cease to be Registrable Securities
when (i) in the circumstances contemplated by Section 2(a), a
registration statement registering such Securities under the
Securities Act has been declared or becomes effective and such
Securities have been sold or otherwise transferred by the Holder
thereof pursuant to such effective registration statement; (ii) such
Securities are sold pursuant to Rule 144 under circumstances in which
any legend borne by such Securities relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is
removed or such Securities are eligible to be sold pursuant to of Rule
144(k) or any successor provision; or (iii) such Securities shall
cease to be outstanding (including, in the case of the Notes, upon
conversion into Shares).
(w) "Registration Default" has the meaning assigned thereto in
Section 2(d).
(x) "Registration Expenses" has the meaning assigned thereto in
Section 5.
(y) "Rule 144," "Rule 405" and "Rule 415" means, in each case,
such rule as promulgated under the Securities Act.
(z) "Securities" means, collectively, the Notes and the Shares.
(aa) "Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
(bb) "Shares" means the shares of common stock of the Company,
par value $0.10 per share, into which the Notes are convertible or
that have been issued upon any conversion from Notes into common stock
of the Company.
(cc) "Shelf Registration Statement" means the shelf registration
statement referred to in Section 2(a), as amended or supplemented by
any amendment or supplement, including post-effective amendments, and
all materials incorporated by reference or explicitly deemed to be
incorporated by reference in such Shelf Registration Statement.
(dd) "Trust Indenture Act" means the Trust Indenture Act of 1939,
or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to
time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended from time to
time.
2. Registration Under the Securities Act.
(a) The Company agrees to file under the Securities Act as
promptly as practicable but in any event within 90 days after the
Closing Date a shelf registration statement providing for the
registration of, and the sale on a continuous or delayed basis by the
Holders of, all of the Registrable Securities, pursuant to Rule 415 or
any similar rule that may be adopted by the Commission. The Company
agrees to use its reasonable efforts to cause the Shelf Registration
Statement to become or be declared effective within 150 days after the
Closing Date and to keep such Shelf Registration Statement
continuously effective until the earlier of (i) the second anniversary
of the Closing Date or (ii) such time as there are no longer any
Registrable Securities outstanding (the "Effective Period"). None of
the Company's securityholders (other than Holders of Registrable
Securities) shall have the right to include any of the Company's
securities in the Shelf Registration Statement.
(b) The Company further agrees to supplement or make amendments
to the Shelf Registration Statement, as and when required by the
rules, regulations or instructions applicable to the registration form
used for such Shelf Registration Statement or by the Securities Act or
the Exchange Act, and the Company agrees to furnish to the Holders of
the Registrable Securities copies of any such supplement or amendment
prior to its being used or promptly following its filing with the
Commission. If the Shelf Registration Statement, as amended or
supplemented from time to time, ceases to be effective for any reason
at any time during the Effectiveness Period (other than because all
Registrable Securities registered thereunder shall have been sold
pursuant thereto or shall have otherwise ceased to be Registrable
Securities), the Company shall use its reasonable best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness
thereof.
(c) Each Holder of Registrable Securities agrees that if such
Holder wishes to sell Registrable Securities pursuant to the Shelf
Registration Statement and related Prospectus, it will do so only in
accordance with this Section 2(c) and Section 3(b). Each Holder of
Registrable Securities wishing to sell Registrable Securities pursuant
to the Shelf Registration Statement and related Prospectus agrees to
deliver a Notice and Questionnaire to the Company at least three (3)
Business Days prior to any intended distribution of Registrable
Securities under the Shelf Registration Statement. From and after the
date the Shelf Registration Statement is declared effective, the
Company shall, as promptly as is practicable after the date a Notice
and Questionnaire is delivered, and in any event within five (5)
Business Days after such date, (i) if required by applicable law, file
with the Commission a post-effective amendment to the Shelf
Registration Statement or prepare and, if required by applicable law,
file a supplement to the related Prospectus or a supplement or
amendment to any document incorporated therein by reference or file
any other required document so that the Holder delivering such Notice
and Questionnaire is named as a selling security holder in the Shelf
Registration Statement and the related Prospectus in such a manner as
to permit such Holder to deliver such Prospectus to purchasers of the
Registrable Securities in accordance with applicable law and, if the
Company shall file a post-effective amendment to the Shelf
Registration Statement, use its reasonable efforts to cause such
post-effective amendment to be declared effective under the Securities
Act as promptly as is practicable; (ii) provide such Holder copies of
any documents filed pursuant to Section 2(c)(i); and (iii) notify such
Holder as promptly as practicable after the effectiveness under the
Securities Act of any post-effective amendment filed pursuant to
Section 2(c)(i); provided that if such Notice and Questionnaire is
delivered during a Deferral Period, the Company shall so inform the
Holder delivering such Notice and Questionnaire and shall take the
actions set forth in clauses (i), (ii) and (iii) above upon expiration
of the Deferral Period in accordance with Section 3(b).
Notwithstanding anything contained herein to the contrary, the Company
shall be under no obligation to name any Holder that is not a Notice
Holder as a selling securityholder in any Shelf Registration Statement
or related Prospectus; provided, however, that any Holder that becomes
a Notice Holder pursuant to the provisions of this Section 2(c)
(whether or not such Holder was a Notice Holder at the time the Shelf
Registration Statement was declared effective) shall be named as a
selling securityholder in the Shelf Registration Statement or related
Prospectus in accordance with the requirements of this Section 2(c).
(d) If any of the following events (any such event a
"Registration Default") shall occur, then liquidated damages (the
"Additional Amounts") shall become payable in respect of the
Securities as follows:
(i) if the Shelf Registration Statement is not filed with
the Commission within 90 days following the Closing Date, then
commencing on the 91st day after the Closing Date, Additional
Amounts shall accrue on the Accreted Value of any outstanding
Notes that are Registrable Securities and the Applicable
Conversion Price of any outstanding Shares that are Registrable
Securities at a rate of 0.25% per annum for the first 90 days
following such 91st day and at a rate of 0.5% per annum
thereafter; or
(ii) if the Shelf Registration Statement is not declared
effective by the Commission within 150 days following the Closing
Date, then commencing on the 151st day after the Closing Date,
Additional Amounts shall accrue on the Accreted Value of any
outstanding Notes that are Registrable Securities and the
Applicable Conversion Price of any outstanding Shares that are
Registrable Securities at a rate of 0.25% per annum for the first
90 days following such 151st day and at a rate of 0.5% per annum
thereafter; or
(iii) if the Company has failed to perform its obligations
set forth in Section 2(c) hereof within the time periods required
therein, then commencing on the first day after the date by which
the Company was required to perform such obligations, Additional
Amounts shall accrue on the Accreted Value of any outstanding
Notes that are Registrable Securities and the Applicable
Conversion Price of any outstanding shares that are Registrable
Securities at a rate of 0.25% per annum for the first 90 days and
at a rate of 0.5% per annum thereafter;
(iv) if the Shelf Registration Statement has been declared
effective but such Shelf Registration Statement ceases to be
effective at any time during the Effective Period (other than
during a Deferral Period), then commencing on the day such Shelf
Registration Statement ceases to be effective, Additional Amounts
shall accrue on the Accreted Value of any outstanding Notes that
are Registrable Securities and the Applicable Conversion Price of
any outstanding Shares that are Registrable Securities at a rate
of 0.25% per annum for the first 90 days following such date on
which the Shelf Registration Statement ceases to be effective and
at a rate of 0.5% per annum thereafter; or
(v) if the aggregate duration of Deferral Periods in any
period exceeds the number of days permitted in respect of such
period pursuant to Section 3(b) hereof, then commencing on the
day the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period,
Additional Amounts shall accrue on the Accreted Value of any
outstanding Notes that are Registrable Securities and the
Applicable Conversion Price of any outstanding Shares that are
Registrable Securities at a rate of 0.25% per annum for the first
90 days and at a rate of 0.5% per annum thereafter;
provided, however, that the Additional Amounts rate on the Securities
shall not exceed in the aggregate 0.5% per annum and shall not be
payable under more than one clause above for any given period of time,
except that if Additional Amounts would be payable under more than one
clause above, but at a rate of 0.25% under one clause and at a rate of
0.5% under the other, then the Additional Amount rate shall be the
higher rate of 0.5% per annum; provided further, however, that (1)
upon the filing of the Shelf Registration Statement (in the case of
clause (i) above), (2) upon the effectiveness of the Shelf
Registration Statement (in the case of clause (ii) above), (3) upon
the Company's performing its obligations set forth in Sections 2(b)
and 2(c) hereof within the time periods required therein (in the case
of clause (iii) above), (4) upon the effectiveness of the Shelf
Registration Statement which had ceased to remain effective (in the
case of clause (iv) above), (5) upon the termination of the Deferral
Period that caused the limit on the aggregate duration of Deferral
Periods in a period set forth in Section 3(b) to be exceeded (in the
case of clause (v) above) or (6) upon the termination of certain
transfer restrictions on the Securities as a result of the application
of Rule 144(k) or any successor provision, Additional Amounts on the
Securities as a result of such clause, as the case may be, shall cease
to accrue.
Additional Amounts on the Securities, if any, will be payable in
cash on December 14 and June 14 of each year (the "Additional Amounts
Payment Date") to holders of record of outstanding Registrable
Securities on each preceding November 30 and May 31. The date of
determination of the Accreted Value of any outstanding Notes that are
Registrable Securities and the Applicable Conversion Price of any
outstanding Shares that are Registrable Securities shall be the
Business Day immediately preceding the Additional Amounts Payment
Date; provided that in the case of an event of the type described in
clause (iii) above, such Additional Amounts shall be paid only to the
Holders that have delivered Notice and Questionnaires that caused the
Company to incur the obligations set forth in Section 2(c), the
non-performance of which is the basis of such Registration Default;
provided further that any Additional Amounts accrued with respect to
any Notes or portion thereof called for redemption on a redemption
date or converted into Shares on a conversion date prior to the
Registration Default shall, in any such event, be paid instead to the
Holder who submitted such Notes or portion thereof for redemption or
conversion on the applicable redemption date or conversion date, as
the case may be, on such date (or promptly following the conversion
date, in the case of conversion). Following the cure of all
Registration Defaults requiring the payment of Additional Amounts by
the Company to the Holders of Registrable Securities pursuant to this
Section, the accrual of Additional Amounts will cease (without in any
way limiting the effect of any subsequent Registration Default
requiring the payment of Additional Amounts by the Company).
The Trustee shall be entitled, on behalf of Holders of
Securities, to seek any available remedy for the enforcement of this
Agreement, including for the payment of any Additional Amounts.
Notwithstanding the foregoing, the parties agree that the sole
monetary damages payable for a violation of the terms of this
Agreement with respect to which liquidated damages are expressly
provided shall be as set forth in this Section 2(d). Nothing shall
preclude a Notice Holder or Holder of Registrable Securities from
pursuing or obtaining specific performance or other equitable relief
with respect to this Agreement.
3. Registration Procedures.
The following provisions shall apply to the Shelf Registration
Statement filed pursuant to Section 2:
(a) The Company shall:
(i) prepare and file with the Commission a registration
statement with respect to the shelf registration on any form
which may be utilized by the Company and which shall permit the
disposition of the Registrable Securities in accordance with the
intended method or methods thereof, as specified in writing by
the Holders of the Registrable Securities, and use its reasonable
efforts to cause such registration statement to become effective
in accordance with Section 2(a) above;
(ii) before filing any Shelf Registration Statement or
Prospectus or any amendments or supplements thereto with the
Commission, furnish to the Initial Purchasers copies of all such
documents proposed to be filed and use reasonable efforts to
reflect in each such document when so filed with the Commission
such comments as the Initial Purchasers reasonably shall propose
within three (3) Business Days of the delivery of such copies to
the Initial Purchasers;
(iii) use its reasonable efforts to prepare and file with
the Commission such amendments and post-effective amendments to
the Shelf Registration Statement as may be necessary to keep such
Shelf Registration Statement continuously effective until the
expiration of the Effectiveness Period; cause the related
Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule
424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities
Act applicable to it with respect to the disposition of all
Securities covered by such Shelf Registration Statement during
the Effectiveness Period in accordance with the intended methods
of disposition by the sellers thereof set forth in such Shelf
Registration Statement as so amended or such Prospectus as so
supplemented;
(iv) promptly notify the Notice Holders of Registrable
Securities (A) when such Shelf Registration Statement or the
Prospectus included therein or any amendment or supplement to the
Prospectus or post-effective amendment has been filed with the
Commission, and, with respect to such Shelf Registration
Statement or any post-effective amendment, when the same has
become effective, (B) of any request, following the effectiveness
of the Shelf Registration Statement by the Commission or any
other Federal or state governmental authority for amendments or
supplements to the Shelf Registration Statement or related
Prospectus or for additional information, (C) of the issuance by
the Commission of any stop order suspending the effectiveness of
such Shelf Registration Statement or the initiation or written
threat of any proceedings for that purpose, (D) of the receipt by
the Company of any notification with respect to the suspension of
the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or written threat of any
proceeding for such purpose, (E) of the occurrence of (but not
the nature of or details concerning) any event or the existence
of any fact (a "Material Event") as a result of which any Shelf
Registration Statement shall contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, or any Prospectus shall contain any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading (provided, however, that no notice by the Company
shall be required pursuant to this clause (E) in the event that
the Company either promptly files a Prospectus supplement to
update the Prospectus or a Form 8-K or other appropriate Exchange
Act report that is incorporated by reference into the Shelf
Registration Statement, which, in either case, contains the
requisite information with respect to such Material Event that
results in such Shelf Registration Statement no longer containing
any untrue statement of material fact or omitting to state a
material fact necessary to make the statements contained therein
not misleading), (F) of the determination by the Company that a
post-effective amendment to the Shelf Registration Statement will
be filed with the Commission, which notice may, at the discretion
of the Company (or as required pursuant to Section 3(b)), state
that it constitutes a Deferral Notice, in which event the
provisions of Section 3(b) shall apply or (G) at any time when a
Prospectus is required to be delivered under the Securities Act,
that the Shelf Registration Statement, Prospectus, Prospectus
amendment or supplement or post-effective amendment does not
conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act and the rules
and regulations of the Commission thereunder;
(v) prior to any public offering of the Registrable
Securities pursuant to the Shelf Registration Statement, use
reasonable efforts to register or qualify or cooperate with the
Notice Holders in connection with the registration or
qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions
within the United States as any Notice Holder reasonably requests
in writing (which request may be included in the Notice and
Questionnaire); prior to any public offering of the Registrable
Securities pursuant to the Shelf Registration Statement, use its
reasonable efforts to keep each such registration or
qualification (or exemption therefrom) effective during the
Effectiveness Period in connection with such Notice Holder's
offer and sale of Registrable Securities pursuant to such
registration or qualification (or exemption therefrom) and do any
and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of such Registrable Securities
in the manner set forth in the Shelf Registration Statement and
the related Prospectus; provided, that the Company will not be
required to (i) qualify as a foreign corporation or as a dealer
in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Agreement or (ii) take any
action that would subject it to general service of process in
suits or to taxation in any such jurisdiction where it is not
then so subject;
(vi) use its reasonable best efforts to prevent the issuance
of, and if issued, to obtain the withdrawal of any order
suspending the effectiveness of the Shelf Registration Statement
or any post-effective amendment thereto, and to lift any
suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction in which they have been
qualified for sale, in each case at the earliest practicable
date;
(vii) upon reasonable notice, for a reasonable period prior
to the filing of the Shelf Registration Statement, and throughout
the Effectiveness Period, make available at reasonable times at
the Company's principal place of business or such other
reasonable place for inspection by a representative appointed by
the Notice Holders in connection with an underwritten offering
(or any underwriter, placement agent or counsel acting on their
behalf), who shall certify to the Company that they have a
current intention to sell their Registrable Securities pursuant
to the Shelf Registration Statement, such financial and other
information and books and records of the Company, and cause the
officers, employees and independent certified public accountants
of the Company to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the counsel to such
Notice Holders, to conduct a reasonable "due diligence"
investigation; provided, however, that each such representative
appointed by the Notice Holders in connection with an
underwritten offering shall be required to maintain in confidence
and not to disclose to any other person any information or
records reasonably designated by the Company in writing as being
confidential, until such time as (A) such information becomes a
matter of public record (whether by virtue of its inclusion in
the Shelf Registration Statement or otherwise) or (B) such person
shall be required so to disclose such information pursuant to a
subpoena or order of any court or other governmental agency or
body having jurisdiction over the matter (subject to the
requirements of such order, and only after such person shall have
given the Company prompt prior written notice of such requirement
and the opportunity to contest the same or seek an appropriate
protective order);
(viii) if reasonably requested by the Initial Purchasers or
any Notice Holder, promptly incorporate in a Prospectus
supplement or post-effective amendment to the Shelf Registration
Statement such information as the Initial Purchasers or such
Notice Holder shall, on the basis of a written opinion of
nationally-recognized counsel experienced in such matters,
determine to be required to be included therein by applicable law
and make any required filings of such Prospectus supplement or
such post-effective amendment; provided, that the Company shall
not be required to take any actions under this Section 3(a)(viii)
that are not, in the reasonable opinion of counsel for the
Company, in compliance with applicable law;
(ix) promptly furnish to each Notice Holder and the Initial
Purchasers, upon their request and without charge, at least one
(1) conformed copy of the Shelf Registration Statement and any
amendments thereto, including financial statements but excluding
schedules, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits (unless
requested in writing to the Company by such Notice Holder or the
Initial Purchasers, as the case may be); and
(x) during the Effectiveness Period, deliver to each Notice
Holder in connection with any sale of Registrable Securities
pursuant to the Shelf Registration Statement, without charge, as
many copies of the Prospectus relating to such Registrable
Securities (including each preliminary prospectus) and any
amendment or supplement thereto as such Notice Holder may
reasonably request; and the Company hereby consents (except
during such periods that a Deferral Notice is outstanding and has
not been revoked) to the use of such Prospectus or each amendment
or supplement thereto by each Notice Holder in connection with
any offering and sale of the Registrable Securities covered by
such Prospectus or any amendment or supplement thereto in the
manner set forth therein.
(b) Upon (A) the issuance by the Commission of a stop order
suspending the effectiveness of the Shelf Registration Statement or
the initiation of proceedings with respect to the Shelf Registration
Statement under Section 8(d) or 8(e) of the Securities Act, (B) the
occurrence of any event or the existence of any Material Event as a
result of which the Shelf Registration Statement shall contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, or any Prospectus shall contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or (C) the occurrence or existence of any corporate
development that, in the discretion of the Company, makes it
appropriate to suspend the availability of the Shelf Registration
Statement and the related Prospectus, the Company will (i) in the case
of clause (B) above, subject to the third sentence of this provision,
as promptly as practicable prepare and file a post-effective amendment
to such Shelf Registration Statement or a supplement to the related
Prospectus or any document incorporated therein by reference or file
any other required document that would be incorporated by reference
into such Shelf Registration Statement and Prospectus so that such
Shelf Registration Statement does not contain any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and such Prospectus does not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, and, in the case of a post-effective
amendment to the Shelf Registration Statement, subject to the third
sentence of this provision, use reasonable efforts to cause it to be
declared effective as promptly as is practicable, or (ii) give notice
to the Notice Holders that the availability of the Shelf Registration
Statement is suspended (a "Deferral Notice"). Upon receipt of any
Deferral Notice, each Notice Holder agrees not to sell any Registrable
Securities pursuant to the Shelf Registration Statement until such
Notice Holder's receipt of copies of the supplemented or amended
Prospectus provided for in clause (i) above, or until it is advised in
writing by the Company that the Prospectus may be used, and has
received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus.
The Company will use its reasonable best efforts to ensure that the
use of the Prospectus may be resumed (x) in the case of clause (A)
above, as promptly as is practicable, (y) in the case of clause (B)
above, as soon as, in the sole judgment of the Company, public
disclosure of such Material Event would not be prejudicial to or
contrary to the interests of the Company or, if necessary to avoid
unreasonable burden or expense, as soon as practicable thereafter and
(z) in the case of clause (C) above, as soon as, in the discretion of
the Company, such suspension is no longer appropriate. The period
during which the availability of the Shelf Registration Statement and
any Prospectus is suspended (the "Deferral Period"), without the
Company incurring any obligation to pay liquidated damages pursuant to
Section 2(d), shall not exceed one hundred and twenty (120) days in
the aggregate in any twelve (12) month period.
(c) Each Holder of Registrable Securities agrees that upon
receipt of any notice from the Company, pursuant to Section
3(a)(iv)(E), such Holder shall forthwith discontinue (and cause any
placement or sales agent or underwriters acting on their behalf to
discontinue) the disposition of Registrable Securities pursuant to the
registration statement applicable to such Registrable Securities until
such Holder (i) shall have received copies of such amended or
supplemented Prospectus and, if so directed by the Company, such
Holder shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Holder's
possession of the Prospectus covering such Registrable Securities at
the time of receipt of such notice or (ii) shall have received notice
from the Company that the disposition of Registrable Securities
pursuant to the Shelf Registration may continue.
(d) The Company may require each Holder of Registrable Securities
as to which any registration pursuant to Section 2(a) is being
effected to furnish to the Company such information regarding such
Holder and such Holder's intended method of distribution of such
Registrable Securities as the Company may from time to time reasonably
request in writing, but only to the extent that such information is
required in order to comply with the Securities Act. Each such Holder
agrees to notify the Company as promptly as practicable of any
inaccuracy or change in information previously furnished by such
Holder to the Company or of the occurrence of any event in either case
as a result of which any Prospectus relating to such registration
contains or would contain an untrue statement of a material fact
regarding such Holder or such Holder's intended method of disposition
of such Registrable Securities or omits to state any material fact
regarding such Holder or such Holder's intended method of disposition
of such Registrable Securities required to be stated therein or
necessary to make the statements therein not misleading, and promptly
to furnish to the Company any additional information required to
correct and update any previously furnished information or required so
that such Prospectus shall not contain, with respect to such Holder or
the disposition 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 not misleading.
(e) The Company shall comply with all applicable rules and
regulations of the Commission and make generally available to its
securityholders earning statements (which need not be audited)
satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) commencing on the first day of the first fiscal
quarter of the Company commencing after the effective date of the
Shelf Registration Statement, which statements shall cover said
12-month periods.
(f) The Company shall provide a CUSIP number for all Registrable
Securities covered by the Shelf Registration Statement not later than
the effective date of such Shelf Registration Statement and provide
the Trustee for the Notes and the transfer agent for the Shares with
printed certificates for the Registrable Securities that are in a form
eligible for deposit with The Depository Trust Company.
(g) The Company shall use its reasonable efforts to provide such
information as is required for any filings required to be made with
the National Association of Securities Dealers, Inc.
(h) Until the expiration of two years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as
defined in Rule 144) to, resell any of the Securities that have been
reacquired by any of them except pursuant to an effective registration
statement under the Securities Act.
(i) The Company shall enter into such customary agreements and
take all such other necessary and lawful actions in connection
therewith (including those requested by the holders of a majority of
the Registrable Securities being sold) in order to expedite or
facilitate disposition of such Registrable Securities.
4. Holder's Obligations.
Each Holder agrees, by acquisition of the Registrable Securities, that
no Holder of Registrable Securities shall be entitled to sell any of such
Registrable Securities pursuant to the Shelf Registration Statement or to
receive a Prospectus relating thereto, unless such Holder has furnished the
Company with a Notice and Questionnaire as required pursuant to Section 2(c)
hereof (including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Notice
Holder agrees promptly to furnish to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such Notice Holder not misleading and any other information regarding such
Notice Holder and the distribution of such Registrable Securities as may be
required to be disclosed in the Shelf Registration Statement under applicable
law or pursuant to Commission comments. Each Holder further agrees not to sell
any Registrable Securities pursuant to the Shelf Registration Statement without
delivering, or causing to be delivered, a Prospectus to the purchaser thereof
and, following termination of the Effectiveness Period, to notify the Company,
within 10 business days of request, of the amount of Registrable Securities sold
pursuant to the Shelf Registration Statement and, in the absence of a response,
the Company may assume that all of the Holder's Registrable Securities were so
sold.
5. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly
upon request being made therefor all expenses incident to the Company's
performance of or compliance with this Agreement, including (a) all Commission
and any NASD registration and filing fees and expenses, (b) all fees and
expenses in connection with the qualification of the Securities for offering and
sale under the State securities and Blue Sky laws referred to in Section 3(a)(v)
hereof, including reasonable fees and disbursements of one counsel for the
placement agent or underwriters, if any, in connection with such qualifications,
(c) all expenses relating to the preparation, printing, distribution and
reproduction of the Shelf Registration Statement, the related Prospectus, each
amendment or supplement to each of the foregoing, the certificates representing
the Securities and all other documents relating hereto, (d) fees and expenses of
the Trustee under the Indenture, any escrow agent or custodian, and of the
registrar and transfer agent for the Shares, (e) fees, disbursements and
expenses of counsel and independent certified public accountants of the Company
(including the expenses of any opinions or "cold comfort" letters required by or
incident to such performance and compliance) and (f) reasonable fees,
disbursements and expenses of one counsel for the Holders of Registrable
Securities retained in connection with the Shelf Registration Statement, as
selected by the Company (unless reasonably objected to by Holders of at least a
majority in aggregate Accreted Value and Applicable Conversion Price of the
Registrable Securities being registered), and fees, expenses and disbursements
of any other persons, including special experts, retained by the Company in
connection with such registration (collectively, the "Registration Expenses").
To the extent that any Registration Expenses are incurred, assumed or paid by
any Holder of Registrable Securities or any placement agent therefor or
underwriter thereof, the Company shall reimburse such person for the full amount
of the Registration Expenses so incurred, assumed or paid promptly after receipt
of a documented request therefor. Notwithstanding the foregoing, the Holders of
the Registrable Securities being registered shall pay all placement agent fees
and commissions and underwriting discounts and commissions attributable to the
sale of such Registrable Securities and the fees and disbursements of any
counsel or other advisors or experts retained by such Holders (severally or
jointly), other than the counsel and experts specifically referred to above.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Holder
of Securities covered by any Shelf Registration Statement (including
the Initial Purchasers), the directors, officers, employees and agents
of each such Holder and each Person who controls any such Holder
within the meaning of either the Securities 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
Securities Act, the Exchange Act or other Federal or state 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 Shelf 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 arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading (in the case of any preliminary Prospectus or the
Prospectus, in light of the circumstances under which they were made),
and agrees 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 Company 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 the Company by or on behalf of any such Holder specifically for
inclusion therein. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
The Company also agrees to indemnify or contribute as provided in
Section 7(d) to Losses (as defined herein) of each underwriter of
Securities, registered under the 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 Purchaser and the Holders provided in
this Section 7(a), and shall, if requested by any Holder, enter into
an underwriting agreement reflecting such agreement.
(b) Each Holder of securities covered by the Shelf Registration
Statement (including the Initial Purchasers) severally agrees to
indemnify and hold harmless the Company, each of its directors, each
of its officers who signs such Shelf Registration Statement and each
Person who controls the Company within the meaning of either the
Securities Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each such Holder, but only
with reference to written information relating to such Holder
furnished to the Company 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 7 or 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, 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
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 separate counsel (including local counsel), 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 a 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 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 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. 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 of the Securities under the Purchase Agreement and the shelf
registration which resulted in such Losses; provided, however, that in
no case shall any Initial Purchaser or any subsequent Holder of any
Securities be responsible, in the aggregate, for any amount in excess
of the purchase discount or commission applicable to such Securities
as set forth under "Plan of Distribution" in the Offering 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 Shelf 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 Company shall be deemed to be equal to the
sum of (x) the total net proceeds from the initial placement of the
Securities under the Purchase Agreement (before deducting expenses) as
set forth under "Use of Proceeds" in the Offering Memorandum and (y)
the total amount of additional interest which the Company was not
required to pay as a result of registering the securities covered by
the Shelf Registration Statement which resulted in such Losses.
Benefits received by the Initial Purchasers shall be deemed to be
equal to the total purchase discounts and commissions as set forth
under "Plan of Distribution" in the Offering Memorandum, and benefits
received by any other Holders shall be deemed to be equal to the value
of receiving Securities registered under the Securities 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 Shelf 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, 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
Securities Act) shall be entitled to contribution from any Person who
was not guilty of such fraudulent misrepresentation. For purposes of
this Section, each Person who controls a Holder within the meaning of
either the Securities 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 the
Company within the meaning of either the Securities Act or the
Exchange Act, each officer of the Company who shall have signed the
Shelf Registration Statement and each director of the Company shall
have the same rights to contribution as the Company, subject in each
case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section will remain in full force and
effect, regardless of any investigation made by or on behalf of any
Holder or the Company or any of the officers, directors or controlling
Persons referred to in this Section hereof, and will survive the sale
by a Holder of securities covered by the Shelf Registration Statement.
7. Rule 144.
The Company covenants to the Holders of Registrable Securities that
the Company shall use its reasonable efforts to timely file the reports required
to be filed by it under the Exchange Act or the Securities Act (including the
reports under Section 13 and 15(d) of the Exchange Act referred to in
subparagraph (c)(1) of Rule 144 adopted by the Commission under the Securities
Act) and the rules and regulations adopted by the Commission thereunder, all to
the extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitations
of the exemption provided by Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar or successor rule or regulation
hereafter adopted by the Commission. Upon the request of any Holder of
Registrable Securities in connection with that Holder's sale pursuant to Rule
144, the Company shall deliver to such Holder a written statement as to whether
it has complied with such requirements.
8. Miscellaneous.
(a) Entire Agreement; Amendments. This Agreement and the other
writings referred to herein (including the Indenture) or delivered
pursuant hereto which form a part hereof contain the entire
understanding of the parties and supersedes all prior agreements and
understandings between the parties with respect to its subject matter.
This Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance
and either retroactively or prospectively) only by a written
instrument duly executed by the Company and the Holders of at least a
majority of the Shares constituting Registrable Securities at the time
outstanding (with Holders of Notes deemed to be the Holders, for the
purposes of this Section, of the number of outstanding Shares into
which such Notes are or would be convertible or exchangeable as of the
date on which such consent is requested). Each Holder of any
Registrable Securities at the time or thereafter outstanding shall be
bound by any amendment or waiver effected pursuant to this Section
9(a), whether or not any notice, writing or marking indicating such
amendment or waiver appears on such Registrable Securities or is
delivered to such Holder.
(b) Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed
to have been duly given when delivered by hand, if delivered
personally or by courier, or three days after being deposited in the
mail (registered or certified mail, postage prepaid, return receipt
requested) as follows:
(i) If to the Company, to it at 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel;
(ii) If to the Initial Purchasers, to the address set forth
in the Purchase Agreement;
(iii) and if to a Holder, to the address of such Holder set
forth in the security register, the Notice and Questionnaire or
other records of the Company or to such other address as the
Company or any such Holder may have furnished to the other in
writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
(c) Successors. This Agreement shall be binding upon, shall inure
to the benefit of and shall be enforceable by the respective
successors and assigns of the parties hereto. In the event that any
transferee of any Holder of Registrable Securities shall acquire
Registrable Securities, in any manner, whether by gift, bequest,
purchase, operation of law or otherwise, such transferee shall,
without any further writing or action of any kind, be deemed a party
hereto for all purposes and such Registrable Securities shall be held
subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such transferee shall be entitled
to receive the benefits of, and be conclusively deemed to have agreed
to be bound by and to perform, all of the applicable terms and
provisions of this Agreement.
(d) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Agreement or made pursuant hereto shall remain in full force and
effect regardless of any investigation (or statement as to the results
thereof) made by or on behalf of any Holder of Registrable Securities,
any director, officer or partner of such Holder, any agent or
underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery
of and payment for the Registrable Securities pursuant to the Purchase
Agreement and the transfer and registration of Registrable Securities
by such Holder.
(e) APPLICABLE LAW. THIS REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK.
(f) Headings. The descriptive headings of the several Sections
and paragraphs of this Agreement are inserted for convenience only, do
not constitute a part of this Agreement and shall not affect in any
way the meaning or interpretation of this Agreement.
(g) Counterparts. This Agreement may be executed by the parties
in counterparts, each of which shall be deemed to be an original, but
all such respective counterparts shall together constitute one and the
same instrument.
Agreed to and accepted as of the date referred to above.
Very truly yours,
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By: /s/ Xxxxxxxx X. Camera
---------------------------------
Name: Xxxxxxxx X. Camera
Title: Senior Vice President,
General Counsel and Secretary
XXXXXXX XXXXX XXXXXX INC.
X.X. XXXXXX SECURITIES INC.
HSBC SECURITIES (USA) INC.
XXXXXX XXXXXXX & CO. INCORPORATED
BARCLAYS CAPITAL, INC.
XXXXXXXXX XXXXXXXX, INC.
SUNTRUST CAPITAL MARKETS, INC.
By: Xxxxxxx Xxxxx Barney Inc.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
For itself and the other several Initial Purchasers
named in Schedule I of the foregoing Agreement