EXHIBIT 4.16
REGISTRATION RIGHTS AGREEMENT
DATED AS OF NOVEMBER 16, 2001
BY AND AMONG
XXXXXXXXXXX INTERNATIONAL, INC.
AND
CREDIT SUISSE FIRST BOSTON CORPORATION AND XXXXXX BROTHERS INC.,
ON BEHALF OF THE INITIAL PURCHASERS
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of November 16, 2001 by and among Xxxxxxxxxxx International,
Inc., a Delaware corporation (the "Company"), and Credit Suisse First Boston
Corporation and Xxxxxx Brothers Inc., on behalf of the Initial Purchasers.
This Agreement is made pursuant to the Purchase Agreement dated
November 8, 2001 (the "Purchase Agreement"), by and among the Company and the
Initial Purchasers, which provides for the sale by the Company to the Initial
Purchasers of $350,000,000 aggregate principal amount of the Company's 6 5/8%
Senior Notes due 2011, Series A (the "Notes"). In order to induce the Initial
Purchasers to purchase the Notes, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Advice: As defined in Section 6(e) hereof.
Affiliate: Any person that, directly or indirectly, is in
control of, is controlled by, or is under common control with, such specified
person. For purposes of this definition, control of a person shall mean the
power, direct or indirect, to direct or cause the direction of the management
and policies of such person whether by contract or otherwise.
Blackout Period: As defined in Section 5(a) hereof.
Blue Sky Application: As defined in Section 8(a) hereof.
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Closing Date: The date of this Agreement.
Commission: The U.S. Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the Exchange Notes to be issued in the Exchange Offer,
(ii) the maintenance of such Registration Statement continuously effective and
the keeping of the Exchange Offer open for a period not less than the minimum
period required pursuant to Section 3(b) hereof and (iii) the delivery by the
Company to the registrar under the
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Indenture of Exchange Notes in the same aggregate principal amount as the
aggregate principal amount of Notes that were properly tendered by Holders
thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Notes, each Interest
Payment Date.
Exchange Act: The U.S. Securities Exchange Act of 1934, as
amended.
Exchange Notes: The Company's 6 5/8% Senior Notes due 2011,
Series B, to be issued pursuant to the Indenture in the Exchange Offer.
Exchange Offer: The registration by the Company under the
Securities Act of the Exchange Notes pursuant to a Registration Statement
pursuant to which the Company offers the Holders of all outstanding Notes the
opportunity to exchange all such outstanding Notes held by such Holders for
Exchange Notes in an aggregate principal amount equal to the aggregate principal
amount of the Notes validly tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related Prospectus.
Holders: As defined in Section 2(b) hereof.
Indenture: The Indenture dated as of May 17, 1996, as amended
by the First Supplemental Indenture dated and effective as of May 27, 1998, the
Second Supplemental Indenture dated and effective as of June 30, 2000 and the
Third Supplemental Indenture to be dated and effective as of the date hereof,
among the Company and The Bank of New York, as trustee (the "Trustee"), pursuant
to which the Notes and the Exchange Notes are to be issued, as such Indenture
may be further amended or supplemented from time to time in accordance with the
terms thereof.
Initial Purchasers: Credit Suisse First Boston Corporation,
Xxxxxx Brothers Inc., Deutsche Banc Alex. Xxxxx Inc., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated and Banc One Capital Markets, Inc.
Interest Payment Date: As defined in the Indenture and the
Notes.
Liquidated Damages: As defined in Section 5(a) hereof.
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, limited
liability company, unincorporated organization, association, joint-stock
company, trust, joint venture, government or any agency or political subdivision
thereof or any other entity.
Prospectus: The prospectus included in a Registration
Statement as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
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Record Holder: With respect to any Damages Payment Date
relating to Notes, each Person who is a Holder of Notes on the record date with
respect to the Interest Payment Date on which such Damages Payment Date shall
occur.
Registration Default: As defined in Section 5(a) hereof.
Registration Statement: Any Registration Statement of the
Company relating to (a) an offering of Exchange Notes pursuant to an Exchange
Offer or (b) the registration for resale of Transfer Restricted Securities
pursuant to the Shelf Registration Statement, which is filed pursuant to the
provisions of this Agreement, in each case including the Prospectus included
therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
Securities Act: The U.S. Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4(a) hereof.
Shelf Registration Statement: As defined in Section 4(a)
hereof.
TIA: The U.S. Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note or Exchange Note, as
applicable, until the earliest to occur of (a) the date on which such Note is
exchanged by a person other than a Broker-Dealer in the Exchange Offer in
exchange for an Exchange Note, so long as such person is not prohibited from
reselling such Exchange Notes to the public without delivering a prospectus and
the Prospectus in the Exchange Offer Registration Statement is not sufficient
for such purpose, (b) following the exchange by a Broker-Dealer in the Exchange
Offer of a Note for an Exchange Note, the date on which that Exchange Note is
sold to a purchaser who receives from that Broker-Dealer on or prior to the date
of such sale a copy of the Prospectus contained in the Exchange Offer
Registration Statement, (c) the date on which such Note or Exchange Note has
been effectively registered under the Securities Act and disposed of in
accordance with a Shelf Registration Statement and (d) the date on which such
Note is sold by the Holder pursuant to Rule 144 under the Securities Act or may
be sold by the Holder pursuant to Rule 144(k) under the Securities Act.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. SECURITIES SUBJECT TO THIS AGREEMENT.
(a) Transfer Restricted Securities. The securities entitled to
the benefits of this Agreement are the Transfer Restricted Securities.
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(b) Holders of Transfer Restricted Securities. A Person is
deemed to be a holder of Transfer Restricted Securities (each, a "Holder")
whenever such Person owns Transfer Restricted Securities.
3. REGISTERED EXCHANGE OFFER.
(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with), the Company shall use (i) its reasonable
best efforts to cause to be filed with the Commission as soon as practicable
after the Closing Date, but in no event later than 90 days after the Closing
Date, a Registration Statement under the Securities Act relating to the Exchange
Notes and the Exchange Offer, (ii) its reasonable best efforts to cause such
Registration Statement to be declared effective on or prior to 180 days after
the Closing Date, (iii) in connection with the foregoing, file (A) all
pre-effective amendments to such Registration Statement as may be necessary in
order to cause such Registration Statement to become effective, (B) if
applicable, a post-effective amendment to such Registration Statement pursuant
to Rule 430A under the Securities Act and (C) cause all necessary filings in
connection with the registration and qualification of the Exchange Notes to be
made under the blue sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer and (iv) on or promptly after the
effectiveness of such Registration Statement, commence the Exchange Offer. The
Exchange Offer shall be on the appropriate form permitting registration of the
Exchange Notes to be offered in exchange for the Notes and to permit resales of
Exchange Notes held by Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company shall use its reasonable best efforts to cause
the Exchange Offer Registration Statement to be effective continuously and shall
keep the Exchange Offer open for a period of not less than the minimum period
required under applicable U.S. Federal and state securities laws to Consummate
the Exchange Offer; provided, however, that in no event shall such period be
less than 20 business days. The Company shall cause the Exchange Offer to comply
with all applicable U.S. federal and state securities laws. No securities other
than the Exchange Notes shall be included in the Exchange Offer Registration
Statement. The Company shall use its reasonable best efforts to cause the
Exchange Offer to be Consummated on the earliest practicable date after the
Exchange Offer Registration Statement has become effective, but in any event on
or prior to the 210th day after the Closing Date.
(c) The Company shall indicate in a "Plan of Distribution"
section of the Prospectus contained in the Exchange Offer Registration Statement
that any Broker-Dealer who holds Notes that are Transfer Restricted Securities
and that were acquired for its own account as a result of market-making
activities or other trading activities (other than Transfer Restricted
Securities acquired directly from the Company) may exchange such Notes pursuant
to the Exchange Offer; however, such Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Securities Act and must, therefore,
deliver a Prospectus meeting the requirements of the Securities Act in
connection with any resales of the Exchange Notes received by such Broker-Dealer
in the Exchange Offer, which Prospectus delivery requirement may be satisfied by
the delivery by such Broker-Dealer of the Prospectus contained in the Exchange
Offer Registration Statement. Such "Plan of Distribution" section shall also
contain all other
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information with respect to such resales by Broker-Dealers that the Commission
may require in order to permit such resales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose the amount of
Notes held by any such Broker-Dealer except to the extent required by the
Commission.
The Company shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for resales of Exchange Notes acquired
by Broker-Dealers for their own accounts as a result of market-making activities
or other trading activities, and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of at
least 90 days after the Consummation of the Exchange Offer.
The Company shall provide sufficient copies of the latest
version of such Prospectus to Broker-Dealers promptly upon request at any time
during such 90-day period in order to facilitate such resales.
4. SHELF REGISTRATION.
(a) Shelf Registration. If (i) the Company is not required to
file an Exchange Offer Registration Statement or to Consummate the Exchange
Offer because the Exchange Offer is not permitted by applicable U.S. law or
Commission policy (after the procedures set forth in Section 6(a) below have
been complied with) or (ii) if any Holder of Transfer Restricted Securities
shall notify the Company prior to the 20th day following the Consummation of the
Exchange Offer that such Holder (A) is prohibited by applicable U.S. law or
Commission policy from participating in the Exchange Offer, (B) may not resell
the Exchange Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and that the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
Holder or (C) is a Broker-Dealer and holds Notes acquired directly from the
Company or one of its affiliates, then the Company shall:
(x) use its reasonable best efforts to cause to be filed a
Registration Statement pursuant to Rule 415 under the Securities Act,
which may be an amendment to the Exchange Offer Registration Statement
if permitted by the rules and regulations of the Commission (in either
event, the "Shelf Registration Statement") on or prior to the earliest
to occur of (1) the 60th day after the date on which the Company
determines that it is not permitted to file the Exchange Offer
Registration Statement, or permitted to Consummate the Exchange Offer
and (2) the 60th day after the date on which the Company receives
notice from a Holder of Transfer Restricted Securities as contemplated
by clause (ii) of paragraph (a) above (such earliest date being the
"Shelf Filing Deadline"), which Shelf Registration Statement shall
provide for resales of all Transfer Restricted Securities by the
Holders which shall have provided the information required pursuant to
Section 4(b) hereof; and
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(y) use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission on or
before the later of the 90th day after the Shelf Filing Deadline and
the 180th day after the Closing Date.
Subject to Section 5(b), the Company shall use its reasonable best efforts to
keep such Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Sections 6(b) and (c) hereof to the
extent necessary to ensure that it is available for resales of Notes or Exchange
Notes by the Holders of Transfer Restricted Securities entitled to the benefit
of this Section 4(a), and to ensure that it conforms with the requirements of
this Agreement, the Securities Act and the policies, rules and regulations of
the Commission as announced from time to time, for a period of at least two
years following the Closing Date or such shorter period that will terminate when
all Notes or Exchange Notes covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement.
(b) Provision by Holders of Certain Information in Connection
with the Shelf Registration Statement. No Holder of Transfer Restricted
Securities may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to the Company in writing, within 20 days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Securities shall
be entitled to Liquidated Damages pursuant to Section 5 hereof unless and until
such Holder shall have timely provided all such reasonably requested information
as set forth in the preceding sentence. Each Holder as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading.
5. LIQUIDATED DAMAGES.
(a) If (i) any of the Registration Statements required by this
Agreement are not filed with the Commission on or prior to the date specified
for such filing in Sections 3(a) and 4(a), as applicable, (ii) any of such
required Registration Statements have not been declared effective by the
Commission on or prior to the date specified for such effectiveness in Sections
3(a) and 4(a), as applicable, (iii) the Exchange Offer has not been Consummated
within 210 days after the Closing Date, or longer if required by applicable U.S.
Federal and state securities laws, with respect to the Exchange Offer
Registration Statement or (iv) any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter cease to be
effective or fail to be usable in connection with resales of Transfer Restricted
Securities during the time periods such Registration Statement is required to
remain effective pursuant to the terms hereof without being succeeded
immediately by a post-effective amendment to such Registration Statement that
cures such failure and that is itself immediately declared effective (except as
permitted in paragraph (b); such period of time during which any such
Registration Statement is not effective or any such Registration Statement or
the related Prospectus is not usable being referred to as a "Blackout Period")
(each such event referred to in clauses (i) through (iv), a "Registration
Default"), the Company agrees to pay liquidated damages ("Liquidated Damages"),
which shall accrue to each Holder of Transfer Restricted Securities
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adversely affected by such Registration Default from and during the continuance
of the Registration Default, in an amount equal to 0.25% per year of the
principal amount of Transfer Restricted Securities held by such Holder with
respect to the first 90-day period immediately following the occurrence of such
Registration Default. The amount of Liquidated Damages shall increase by an
additional 0.25% per year of the principal amount of Transfer Restricted
Securities with respect to each subsequent 90-day period (or portion thereof)
until all Registration Defaults have been cured, up to a maximum amount of
Liquidated Damages of .50% of the principal amount of Transfer Restricted
Securities. The Company shall in no event be required to pay Liquidated Damages
for more than one Registration Default at any given time. All accrued Liquidated
Damages shall be paid to Record Holders by the Company in the same manner and at
the same time(s) as interest is paid under the Notes. Following the cure of all
Registration Defaults relating to any particular Transfer Restricted Securities,
the accrual of Liquidated Damages with respect to such Transfer Restricted
Securities will cease.
(b) A Registration Default referred to in Section 5(a)(iv)
shall be deemed not to have occurred and be continuing in relation to a
Registration Statement or the related Prospectus if (i) the Blackout Period has
occurred solely as a result of (x) the filing of a post-effective amendment to
such Shelf Registration Statement to incorporate annual audited financial
information with respect to the Company where such post-effective amendment is
not yet effective and needs to be declared effective to permit Holders to use
the related Prospectus or (y) the occurrence of other material events with
respect to the Company that would need to be described in such Registration
Statement or the related Prospectus and (ii) in the case of clause (y), the
Company is proceeding promptly and in good faith to amend or supplement
(including by way of filing documents under the Exchange Act which are
incorporated by reference into the Registration Statement) such Registration
Statement and the related Prospectus to describe such events; provided, however,
that in any case if such Blackout Period occurs for a continuous period in
excess of 30 days, a Registration Default shall be deemed to have occurred on
the 31st day of such Blackout Period and Liquidated Damages shall be payable in
accordance with the above paragraph from the day such Registration Default
occurs until such Registration Default is cured or until the Company is no
longer required pursuant to this Agreement to keep such Registration Statement
effective or such Registration Statement or the related Prospectus usable;
provided, further, that in no event shall the total of all Blackout Periods
exceed 45 days during the aggregate of any 12-month period.
All payment obligations of the Company set forth in this
section that are outstanding with respect to any Transfer Restricted Security at
the time such security ceases to be a Transfer Restricted Security shall survive
until such time as all such payment obligations with respect to such security
shall have been satisfied in full.
6. REGISTRATION PROCEDURES.
(a) Exchange Offer Registration Statement. In connection with
the Exchange Offer, the Company shall comply with all of the provisions of
Section 6(c) below, shall use its reasonable best efforts to effect such
exchange to permit the sale of Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof, and
shall comply with all of the following provisions:
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(i) As a condition to its participation in the
Exchange Offer pursuant to the terms of this Agreement, each Holder of
Transfer Restricted Securities shall furnish, upon the request of the
Company, prior to the Consummation thereof, a written representation to
the Company (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any Person to participate in, a distribution of the
Exchange Notes to be issued in the Exchange Offer and (C) it is
acquiring the Exchange Notes in its ordinary course of business. In
addition, all such Holders of Transfer Restricted Securities shall
otherwise cooperate in the Company's preparations for the Exchange
Offer. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available May 13,
1988) and Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991), as
interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters and (2) must comply with
the registration and prospectus delivery requirements of the Securities
Act in connection with a secondary resale transaction and that such a
secondary resale transaction should be covered by an effective
Registration Statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K if the resales are of Exchange Notes obtained by such Holder in
exchange for Notes acquired by such Holder directly from the Company.
(ii) If requested by the Commission, prior to
effectiveness of the Exchange Offer Registration Statement, the Company
shall state to the Commission that the Company is registering the
Exchange Offer in reliance on the position of the Commission enunciated
in Exxon Capital Holdings Corporation (available May 13, 1988) and
Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and shall
represent to the Commission that the Company has not entered into any
arrangement or understanding with any Person to distribute the Exchange
Notes to be received in the Exchange Offer and that, to the best of the
Company's information and belief, each Holder participating in the
Exchange Offer is acquiring the Exchange Notes in its ordinary course
of business and has no arrangement or understanding with any Person to
participate in the distribution of the Exchange Notes received in the
Exchange Offer; and
(iii) The Company shall use its reasonable best
efforts to cause the Exchange Offer to be Consummated in accordance
with the terms of this Agreement, and, upon such Consummation, the
Company shall deliver to the registrar under the Indenture Exchange
Notes in the same aggregate principal amount as the aggregate principal
amount of Notes that were properly tendered by Holders thereof pursuant
to the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall comply with all the provisions of
Section 6(c) below and shall use
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its reasonable best efforts to effect such registration in accordance with the
terms hereof to permit the sale of the Transfer Restricted Securities being sold
in accordance with the intended method or methods of distribution thereof, and
pursuant thereto the Company will as expeditiously as possible prepare and file
with the Commission a Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall be available for the
sale of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof.
(c) General Provisions. In connection with any Registration
Statement and any Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to permit resales of
Notes and Exchange Notes by Broker-Dealers), the Company shall:
(i) use its reasonable best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Sections 3 or 4 of
this Agreement, as applicable; upon the occurrence of any event that
would cause any such Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resale of Transfer Restricted Securities
during the period required by this Agreement, the Company shall file
promptly an appropriate amendment to such Registration Statement, in
the case of clause (A), correcting any such misstatement or omission,
and, in the case of either clause (A) or (B), use its reasonable best
efforts to cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter.
Notwithstanding the foregoing, the Company may allow the Shelf
Registration Statement to cease to become effective and usable if (x)
the board of directors of the Company determines in good faith that it
is in the best interests of the Company not to disclose the existence
of or facts surrounding any proposed or pending material corporate
transaction involving the Company, and the Company notifies the Holders
within two business days after such board of directors makes such
determination or (y) the Prospectus contained in the Shelf Registration
Statement contains an untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they were made,
not misleading; provided that Liquidated Damages shall accrue on the
Notes as provided in Section 5 hereof;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration Statement
as may be necessary to keep the Registration Statement effective for
the applicable period set forth in Sections 3 or 4 hereof, as
applicable; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act, and to comply fully with the
applicable provisions of Rules 424 and 430A under the Securities Act in
a timely manner; and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with
the intended
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method or methods of distribution by the sellers thereof set forth in
such Registration Statement or supplement to the Prospectus;
(iii) if any Transfer Restricted Securities shall be
in certificated form, cooperate with the selling Holders of Transfer
Restricted Securities and the underwriter(s), if any, to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends; and enable such Transfer Restricted Securities to be in such
denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two business days prior to
any sale of Transfer Restricted Securities made by such underwriter(s);
(iv) use its reasonable best efforts to cause the
Transfer Restricted Securities covered by the Registration Statement to
be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof
or the underwriter(s), if any, to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso contained in
clause (c)(ix) below;
(v) if any fact or event contemplated by clause
(d)(i)(D) below shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements made therein, in the
light of the circumstances under which they were made, not misleading;
(vi) provide a CUSIP, CINS or ISIN number, as
applicable, for all Transfer Restricted Securities not later than the
effective date of the Registration Statement and provide the Trustee
under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the
depositary;
(vii) cooperate and assist in any filings required to
be made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD;
(viii) otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission, and make
generally available to its security holders, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) for the twelve-month period (A) commencing
at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best efforts
Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration
Statement; and
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(ix) cause the Indenture to be qualified under the
TIA not later than the effective date of the first Registration
Statement required by this Agreement, and, in connection therewith,
cooperate with the Trustee and the Holders of Notes and Exchange Notes
to effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the TIA;
and execute, and use its reasonable best efforts to cause the Trustee
to execute, all documents that may be required to effect such changes
and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely
manner.
(d) Additional Provisions Applicable to Shelf Registration
Statements. In connection with each Shelf Registration Statement the Company
shall:
(i) advise the underwriter(s), if any, and selling
Holders of Transfer Restricted Securities promptly and, if requested by
such Persons, to confirm such advice in writing, (A) when the
Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to the Shelf Registration Statement or
any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the
Shelf Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Securities Act,
of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or
sale in any jurisdiction or of the initiation of any proceeding for any
of the preceding purposes and (D) of the existence of any fact or the
happening of any event that requires the making of any additions to or
changes in the Shelf Registration Statement or the Prospectus in order
that the Shelf Registration Statement and the Prospectus do not contain
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. If at any
time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement, or any U.S. state
securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of
the Transfer Restricted Securities under U.S. state securities or blue
sky laws, the Company shall use its reasonable best efforts to obtain
the withdrawal or lifting of such order at the earliest possible time;
(ii) if requested in writing, furnish to each of the
selling Holders of Transfer Restricted Securities and each of the
underwriter(s), if any, before filing with the Commission, copies of
any Shelf Registration Statement or any Prospectus included therein or
any amendments or supplements to any such Shelf Registration Statement
or Prospectus, which documents will be subject to the review of such
Holders and underwriter(s), if any, for a period of at least five
business days, and the Company will not file any such Shelf
Registration Statement or Prospectus or any amendment or supplement to
any such Shelf Registration Statement or Prospectus if a selling Holder
of Transfer Restricted Securities covered by such Shelf Registration
Statement or the underwriter(s), if any, shall have reasonably objected
to the filing thereof; such Holders
-11-
and underwriter(s) shall be deemed to have reasonably objected to such
filing if such Shelf Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains an untrue
statement of a material fact or omits to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or fails to
comply with the applicable requirements of the Securities Act;
(iii) make available for inspection at reasonable
times at each of the Company's principal places of business by the
Holders of Transfer Restricted Securities, any underwriter
participating in any disposition pursuant to such Shelf Registration
Statement and any attorney or accountant retained by such selling
Holders or any of the underwriter(s), who shall certify to the Company
that they have a current intention to sell Transfer Restricted
Securities pursuant to a Shelf Registration Statement, such relevant
financial and other records, pertinent corporate documents and
properties of the Company as reasonably requested and cause the
Company's officers, directors and employees to respond to such
inquiries as shall be reasonably necessary, in the reasonable judgment
of counsel to such Holders, to conduct a reasonable investigation;
provided, however, that the foregoing inspection and information
gathering shall be coordinated on behalf of the selling Holders by one
counsel designated by and on behalf of such Holders and, provided,
further, that each such party shall be required to maintain in
confidence and not 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 such 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);
(iv) if requested by any selling Holders of Transfer
Restricted Securities or the underwriter(s), if any, promptly
incorporate in any Shelf Registration Statement or Prospectus pursuant
to a supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of the
Transfer Restricted Securities information with respect to the
principal amount of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid therefor and any other
terms of the offering of the Transfer Restricted Securities to be sold
in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after the
Company is notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment; provided, however,
that the Company shall not be required to take any action pursuant to
this Section 6(d)(iv) that would, in the opinion of counsel for the
Company reasonably satisfactory to the Initial Purchasers, violate
applicable law;
-12-
(v) deliver to each selling Holder of Transfer
Restricted Securities and each of the underwriter(s), if any, without
charge, as many copies of the Prospectus (including each preliminary
Prospectus) and any amendment or supplement thereto as such Persons
reasonably may request; the Company hereby consents to the use of the
Prospectus and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if any, in connection
with the offering and the sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto;
(vi) furnish to each Holder whose Transfer Restricted
Securities have been included in a Shelf Registration Statement in
connection with such exchange or sale, without charge, at least one
copy of the Registration Statement, as first filed with the Commission,
and of each amendment thereto, including, upon request, all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(vii) enter into an underwriting agreement on not
more than one occasion in the case of an offering pursuant to a Shelf
Registration, and make such representations and warranties, and take
all such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities
pursuant to any Registration Statement contemplated by this Agreement,
all to such extent as may be reasonably requested by any Holder or
Holders of Transfer Restricted Securities who hold at least 25% in
aggregate principal amount of such class of Transfer Restricted
Securities; provided that the Company shall not be required to enter
into any such agreement more than once with respect to all of the
Transfer Restricted Securities and may delay entering into such
agreement if the board of directors of the Company determines in good
faith that it is in the best interests of the Company not to disclose
the existence of or facts surrounding any proposed or pending material
corporate transaction involving the Company; and whether or not an
underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, the Company shall, if
requested, cause:
(A) its counsel (including both staff counsel
and outside counsel, with the overall coverage of such opinions
allocated between them in a customary manner) to deliver opinions and
updates thereof relating to the Transfer Restricted Securities in
customary form addressed to such Holders and the managing underwriters,
if any, thereof and dated, in the case of the initial opinions, the
effective date of such Shelf Registration Statement (it being agreed
that the matters to be covered by such opinions shall include, without
limitation, the due incorporation and good standing of the Company and
its significant subsidiaries; the qualification of the Company and its
significant subsidiaries to transact business as foreign corporations;
the due authorization, execution and delivery of any agreement
(including, if requested, an underwriting agreement in customary form)
executed in order to facilitate the disposition of the Transfer
Restricted Securities pursuant to the Shelf Registration Statement; the
due authorization, execution, authentication and issuance, and the
validity and enforceability, of the applicable Transfer Restricted
Securities; the absence of material legal or
-13-
governmental proceedings involving the Company and its subsidiaries;
the absence of governmental approvals required to be obtained in
connection with the Shelf Registration Statement, the offering and sale
of the applicable Transfer Restricted Securities, or any agreement
(including, if requested, an underwriting agreement in customary form)
executed in order to facilitate the disposition of the Transfer
Restricted Securities pursuant to the Shelf Registration Statement; the
compliance as to form of such Shelf Registration Statement and any
documents incorporated by reference therein and of the Indenture with
the requirements of the Securities Act and the TIA, respectively; and,
as of the date of the opinion and as of the effective date of the Shelf
Registration Statement or most recent post-effective amendment thereto,
as the case may be, the absence from such Shelf Registration Statement
and the prospectus included therein, as then amended or supplemented,
and from any documents incorporated by reference therein of an untrue
statement of a material fact or the 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 such documents,
in the light of the circumstances existing at the time that such
documents were filed with the Commission under the Exchange Act)):
(B) its officers to executed and deliver all
customary documents and certificates and updates thereof requested by
any underwriters of the applicable Transfer Restricted Securities; and
(C) its independent public accountants and the
independent public accountants with respect to any other entity for
which financial information is provided in the Shelf Registration
Statement to provide to the selling Holders of the applicable Transfer
Restricted Securities and any underwriter therefor a comfort letter in
customary form and covering matters of the type customarily covered in
comfort letters in connection with underwritten offerings, subject to
receipt of appropriate documentation as contemplated, and only if
permitted, by Statement of Auditing Standards No. 72; and
(viii) prior to any public offering of Transfer
Restricted Securities cooperate with the selling Holders of Transfer
Restricted Securities, the underwriter(s), if any, and their respective
counsel in connection with the registration and qualification of the
Transfer Restricted Securities under the securities or blue sky laws of
such jurisdictions as the selling Holders of Transfer Restricted
Securities or underwriter(s) may reasonably request and do any and all
other acts or things necessary or advisable to enable the disposition
in such jurisdictions of the Transfer Restricted Securities covered by
the Shelf Registration Statement filed pursuant to Section 4 hereof;
provided, however, that the Company shall not be obligated to qualify
as a foreign corporation in any jurisdiction in which it is not now so
qualified or to take any action that would subject it to general
consent to service of process, other than as to matters and
transactions relating to the Shelf Registration Statement, in any
jurisdiction where it is not now so subject.
(e) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice from the Company of the existence of
any fact of the kind described in
-14-
Section 6(d)(i) hereof, such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the Shelf Registration Statement
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 6(d)(v) hereof, or until it is advised in
writing (the "Advice") by the Company that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental filings that
are incorporated by reference in the Prospectus. If so directed by the Company,
each Holder will 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 Transfer Restricted Securities that was current at the
time of receipt of such notice.
(f) The Company may require each Holder of Transfer Restricted
Securities as to which any registration is being effected to furnish to the
Company such information regarding such Holder and such Holder's intended method
of distribution of the applicable Transfer Restricted 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 (i) any
inaccuracy or change in information previously furnished by such Holder to the
Company or (ii) 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 distribution of the applicable Transfer Restricted Securities
or omits to state any material fact regarding such Holder or such Holder's
intended method of distribution of the applicable Transfer Restricted Securities
required to be stated therein or necessary to make the statements made therein,
in light of the circumstances under which they were made, 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 distribution of
the applicable Transfer Restricted 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.
-15-
7. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company regardless of
whether a Registration Statement becomes effective, including without limitation
and as applicable: (i) all Commission, securities exchange or NASD registration
and filing fees and expenses (including filings made by any Initial Purchasers
or Holder with the NASD (and, if applicable, the fees and expenses of any
"qualified independent underwriter" and its counsel that may be required by the
rules and regulations of the NASD)); (ii) all fees and expenses of compliance
with U.S. federal securities and state blue sky or securities laws and
compliance with the rules of the NASD; (iii) all expenses of printing (including
printing certificates for the Exchange Notes to be issued in the Exchange Offer
and printing of Prospectuses), messenger and delivery services; (iv) all fees
and disbursements of counsel for the Company; (v) all fees and disbursements of
independent certified public accountants of the Company (including the expenses
of any special audit and comfort letters required by or incident to such
performance) and (vi) the reasonable fees and disbursements of one firm of
counsel designated by the Holders of a majority in principal amount of Transfer
Restricted Securities covered by the Shelf Registration Statement to act as
counsel for the Holders of those Transfer Restricted Securities in connection
therewith.
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company.
(b) Each Holder of Transfer Restricted Securities will pay all
underwriting discounts, if any, and commissions and transfer taxes, if any,
relating to the disposition of such Holder's Transfer Restricted Securities.
8. INDEMNIFICATION.
(a) The Company shall indemnify and hold harmless each Holder
of Transfer Restricted Securities, its officers and employees and each Person,
if any, who controls any such Holders, within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases, sales and registration of the
Notes and the Exchange Notes), to which that Holder, officer, employee or
controlling Person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Registration Statement or preliminary Prospectus or
Prospectus or in any amendment or supplement thereto or (B) in any blue sky
application or other document prepared or executed by any Company (or based upon
any written information furnished by the Company) specifically for the purpose
of qualifying any or all of the Notes under the securities laws of any state or
other jurisdiction (any such application, document or information being
hereinafter called a "Blue Sky Application"); (ii) the omission or alleged
omission to state in any Registration Statement, preliminary Prospectus or
Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application, any material fact required to
-16-
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; or (iii) any act or
failure to act or any alleged act or failure to act by any Holder of Transfer
Restricted Securities in connection with, or relating in any manner to, the
Notes or the Exchange Notes or the offering contemplated by any Registration
Statement, and which is included as part of or referred to in any loss, claim,
damage, liability or action arising out of or based upon matters covered by
clause (i) or (ii) above (provided that the Company shall not be liable under
this clause (iii) to the extent that it is determined in a final judgment by a
court of competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act undertaken or
omitted to be taken by such Holder through its gross negligence or willful
misconduct); and shall reimburse each Holder and each such officer, employee or
controlling Person promptly upon demand for any legal or other expenses
reasonably incurred by that Holder, officer, employee or controlling Person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Registration Statement, preliminary Prospectus or
Prospectus, or in any such amendment or supplement, or in any Blue Sky
Application, in reliance upon and in conformity with written information
concerning such Holder furnished to the Company by or on behalf of any Holder
specifically for inclusion therein; provided, further, that with respect to any
such untrue statement or omission made in any preliminary Prospectus, the
indemnity agreement contained in this Section 8(a) shall not inure to the
benefit of the Holder from whom the Person asserting any such losses, claims,
damages or liabilities purchased the Notes or Exchange Notes concerned if, to
the extent that such sale was a sale by the Holder, any such loss, claim, damage
or liability of such Holder is a result of the fact that both (A) a copy of the
Prospectus (or the Prospectus as then amended or supplemented) was not sent or
given to such Person at or prior to written confirmation of the sale of such
Notes or Exchange Notes to such Person and (B) the untrue statement or omission
in the preliminary Prospectus was corrected in the Prospectus (or the Prospectus
as then amended or supplemented) unless such failure to deliver the Prospectus
was a result of noncompliance by the Company with Section 6(d)(v) hereof. The
foregoing indemnity agreement is in addition to any liability which the Company
may otherwise have to any Holder or to any officer, employee or controlling
Person of that Holder.
(b) Each Holder, severally and not jointly, shall indemnify
and hold harmless each of the Company, its directors, officers and employees,
and each Person, if any, who controls the Company within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such
director, officer or controlling Person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in any Registration Statement,
preliminary Prospectus or Prospectus, or in any amendment or supplement thereto
or (B) in any Blue Sky Application or (ii) the omission or alleged omission to
state in any Registration Statement, preliminary Prospectus or Prospectus, or in
any amendment or supplement thereto, or in any Blue Sky Application any material
fact required to be stated therein or necessary to make the statements therein
not misleading, but in each case only to the extent
-17-
that the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
concerning such Holders furnished to the Company by or on behalf of that Holder
specifically for inclusion therein and shall reimburse each of the Company and
each such director, officer, employee and controlling Person for any legal or
other expenses reasonably incurred by such Company or each such director,
officer, employee or controlling Person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Holder may otherwise have to either of the
Company or any such director, officer, employee or controlling Person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and; provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel has been specifically authorized by the indemnifying
party in writing, (ii) such indemnified party shall have been advised by such
counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the indemnifying party and in
the reasonable judgment of such counsel it is advisable for such indemnified
party to employ separate counsel or (iii) the indemnifying party has failed to
assume the defense of such action and employ counsel reasonably satisfactory to
the indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to one local counsel) at
any time for all such indemnified parties, which firm shall be designated in
writing by (x) Credit Suisse First Boston Corporation and Xxxxxx Brothers Inc.,
if the indemnified parties under this Section 8 consist of the Initial
Purchasers or any of their respective officers, employees or controlling
Persons, or (y) by the Company, if the indemnified parties under this Section 8
consist of any of the Company or any of its directors, officers,
-18-
employees or controlling Persons. No indemnifying party shall (i) without the
prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), 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 or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Holders on the other, from the
sale of the Transfer Restricted Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and the
Holders, on the other, with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative fault shall
be determined by reference to whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company, on the one hand, or the Holders, on the
other hand, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were to be determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), no Holder
shall be required to contribute any amount in excess of the amount by which the
net proceeds received by it in connection with its sale of Notes exceeds the
amount of any damages which such Holder has otherwise paid or become liable to
pay by reason of the untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute as provided in this Section 8(d) are several and not
joint.
-19-
9. RULE 144A.
The Company hereby agrees with each Holder of Transfer
Restricted Securities, during any period in which the Company is not subject to
Section 13 or 15(d) of the Exchange Act within the two-year period following the
Closing Date, to make available to any Holder or beneficial owner of Transfer
Restricted Securities, in connection with any sale thereof and any prospective
purchaser of such Transfer Restricted Securities from such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Securities Act in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144A.
10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such underwriting arrangements.
11. SELECTION OF UNDERWRITERS.
Subject to Section 6(d)(i), the Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may
sell such Transfer Restricted Securities in an Underwritten Offering at such
Holders' expense. In any such Underwritten Offering, the investment banker or
investment bankers and manager or managers that will administer the offering
will be selected by the Holders of a majority in aggregate principal amount of
the Transfer Restricted Securities included in such offering; provided that such
investment bankers and managers must be reasonably satisfactory to the Company.
12. MISCELLANEOUS.
(a) Remedies. The Company agrees that monetary damages
(including Liquidated Damages) would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agree to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or
after the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. Except as disclosed
in the Offering Memorandum (as such term is defined in the Purchase Agreement),
the Company has not previously entered into any agreement granting any
registration rights with respect to its securities to any Person. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any agreement in effect on the date hereof.
-20-
(c) Adjustments Affecting the Notes. The Company will not take
any action, or permit any change to occur, with respect to the Notes that would
materially and adversely affect the ability of the Holders to Consummate any
Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless the Company has
obtained the written consent of Holders of a majority of the outstanding
principal amount of the Transfer Restricted Securities affected by such
amendment, modification, supplement, waiver or consent. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant to
such Exchange Offer may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities being tendered or registered.
(e) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telex, facsimile,
e-mail or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the registrar under the Indenture, with a copy to the
registrar under the Indenture; and
(ii) if to the Company to:
Xxxxxxxxxxx International, Inc.
000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
E-mail: xxxx.xxxxxx@xxxxxxxxxxx.xxx
with a copy to:
Xxxxxxx & Xxxxx L.L.P.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx
Fax: (000) 000-0000
E-mail: xxxxxxxxx@xxxxx.xxx
Any such notices and communications shall take effect at the
time of receipt thereof. The Company shall be entitled to act and rely upon any
notice or communication given or made by the Initial Purchasers.
-21-
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders; provided, however, that this Agreement shall not
inure to the benefit of or be binding upon a successor or assign of a Holder
unless and to the extent such successor or assign acquired Transfer Restricted
Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED, IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the other
Operative Documents (as defined in the Purchase Agreement) is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXXXXXXXX INTERNATIONAL, INC.
By /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Vice President - Finance & Accounting
Accepted on behalf of the Initial Purchasers:
CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
XXXXXX BROTHERS INC.
By /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
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