Exhibit 4.3
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of November 8, 2002 (this
"AGREEMENT"), is made by and among Navistar International Corporation, a
Delaware corporation, with headquarters located at 0000 Xxxxxxxx Xxxx,
Xxxxxxxxxxx, XX 00000 (the "COMPANY"), and the investors named on the signature
pages hereto (each of whom is hereinafter referred to as an "Initial Investor"
and all of whom collectively are hereinafter referred to as the "INITIAL
INVESTORS").
RECITALS:
A. In connection with the Securities Purchase Agreement dated November
8, 2002 by and among the Initial Investors and the Company (the "PURCHASE
AGREEMENT"), the Company has agreed, upon the terms and subject to the
conditions of the Purchase Agreement, to issue and sell to the Initial Investors
7,755,030 shares of the Company's Common Stock, par value $.10 per share (the
"COMMON SHARES" or the "SECURITIES").
B. In order to induce the Initial Investors to execute and deliver the
Purchase Agreement, the Company has agreed to provide certain registration
rights under the Securities Act and applicable state securities laws with
respect to the Common Shares.
In consideration of the premises and the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Initial Investors hereby
agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used and not otherwise defined herein have the
respective meanings given them in the Purchase Agreement. In addition, as used
in this Agreement, the following terms have the following meanings:
1.1 "INVESTORS" means the Initial Investors and any of their
transferees or assignees who receive or acquire Registrable Securities and who
are entitled to the benefit of this Agreement as provided in Article IX hereof,
provided that neither such person nor any affiliate of such person is registered
as a broker or dealer under Section 15(a) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or a member of the National Association
of Securities Dealers, Inc. (the "NASD").
1.2 The terms "REGISTER," "REGISTERED," and "REGISTRATION" refer to a
registration effected by preparing and filing a Registration Statement or
statements in compliance with the Securities Act and pursuant to Rule 415
promulgated thereunder and the declaration or ordering of effectiveness of such
Registration Statement by the SEC.
1.3 "REGISTRABLE SECURITIES" means the Securities sold pursuant to the
Purchase Agreement and any shares of capital stock issued or issuable from time
to time (with any adjustments) in exchange for or otherwise with respect to the
Securities; provided that Securities will cease to be Registrable Securities at
such time as they have been sold under a Registration
Statement or pursuant to Rule 144 under the Securities Act of 1933, as amended
(the "Securities Act").
1.4 "REGISTRATION PERIOD" means the period between the date of this
Agreement and the earliest of (i) the second anniversary of the date of this
Agreement, (ii) the date on which all of the Registrable Securities have been
sold by the Investors under the Registration Statement or pursuant to Rule 144
or (iii) the date on which all the Registrable Securities may be immediately
sold by the Investors without registration and without restriction as to the
number of Registrable Securities to be sold, pursuant to Rule 144 or otherwise.
1.5 "REGISTRATION STATEMENT" means a Registration Statement of the
Company filed under the Securities Act.
1.6 "RULE 415" means Rule 415 under the Securities Act, or any
successor rule providing for offering securities on a continuous basis, and
applicable rules and regulations thereunder.
REGISTRATION
MANDATORY REGISTRATION.
2.1 MANDATORY REGISTRATION. The Company will use its reasonable best
efforts to file with the SEC within 30 days after the Closing Date of the
purchase of the Common Shares under the Purchase Agreement a Registration
Statement on Form S-3 registering only the Registrable Securities for resale
in accordance with the intended methods of resale or distribution described
by the Investors. If Form S-3 is not available within that 30-day period,
then the Company will use its reasonable best efforts to file a Registration
Statement on such form as is then available to effect a registration of the
Registrable Securities within such 30-day period.
2.2 EFFECTIVENESS OF THE REGISTRATION STATEMENT. The Company will use
its reasonable best efforts to cause the Registration Statement contemplated by
the previous Section to be declared effective by the SEC as soon as practicable
after filing, and in any event no later than the 90th day after the Closing Date
(the "REQUIRED EFFECTIVE DATE"). However, so long as the Company filed the
Registration Statement within 30 days after the Closing Date, if the
Registration Statement receives any SEC review, then the Required Effective Date
will be the 120th day after the Closing Date. The Company's best efforts will
include, but are not be limited to, promptly responding to all comments received
from the staff of the SEC. If the Company receives notification from the SEC
that the Registration Statement will receive no action or review from the SEC,
then the Company will request that the Registration Statement become effective
within five business days after such SEC notification.
2.3 PAYMENTS BY THE COMPANY. If (i) at any time after effectiveness of
the Registration Statement, sales cannot be made thereunder during the
Registration Period for any reason, other than by reason of the operation of
Section 3.6, for a period of more than 10 consecutive business days, or 30
business days in the aggregate, during any 12-month period or (ii) the Common
Stock is not listed or included for quotation on the NYSE for more than an
aggregate of 10 business days in any 12-month period, then the Company will
thereafter make a payment (by wire transfer or check) to each Investor as
partial compensation for such delay. The
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amount of the payment made to each Investor will be equal to 1% of the purchase
price paid for the Common Shares purchased by the Investor and not previously
sold by the Investor for each 30 business days that sales cannot be made under
the effective Registration Statement or the Common Stock is not listed or
included for quotation on the NYSE (but in no event to exceed 8% in the
aggregate) beyond the allowed period. The number of shares not previously sold
as specified in the previous sentence shall be determined as of the end of the
respective 30 day period. These payments will be prorated on a daily basis
during the 30 business day period and will be paid to each Investor in check
within five business days following the end of each month as to which payment is
due hereunder, assuming that the respective Investor delivered to the Company at
least 2 business days prior thereto information with respect to the number of
Common Shares not previously sold by such Investor (together with reasonable
supporting documentation). The Investors may make a claim for additional damages
as a remedy for the Company's failure to comply with the timelines set forth in
this section. Notwithstanding the foregoing, in the event the Company's failure
to comply with the timelines set forth in this section is unintentional, the
damages described above shall be the Investors' sole and exclusive remedy for
such failure.
2.4 EFFECT OF LATE REGISTRATION. If the Registration Statement has not
been declared effective by the Required Effective Date, then the Company will
make a payment (by wire transfer or check) to each Investor as partial
compensation for such delay (the "LATE REGISTRATION PAYMENTS"). The Late
Registration Payments will be equal to 1% of the purchase price paid for the
Common Shares purchased by such Investor and not previously sold by such
Investor for each 30 business days after the Required Effective Date (but in no
event to exceed 8% in the aggregate). The Late Registration Payments will be
prorated on a daily basis during the 30 business day period and will be paid to
the Initial Investors in check within five business days after the earlier of
(i) the end of the 30 business days following the Required Effective Date or
(ii) the effective date of the Registration Statement. The Investors may make a
claim for additional damages as a remedy for the Company's failure to comply
with the timelines set forth in this section. Notwithstanding the foregoing, in
the event the Company's failure to comply with the timelines set forth in this
section is unintentional, the damages described above shall be the Investors'
sole and exclusive remedy for such failure (it being understood that a failure
to comply with the timelines set forth in this section as a result of comments
raised by the SEC in its review of the Registration Statement shall be deemed
unintentional).
2.5 PIGGYBACK REGISTRATIONS.
(a) If, at any time prior to the expiration of the Registration
Period, a Registration Statement is not effective with respect to all of the
Registrable Securities and the Company decides to register any of its equity
securities or securities which are convertible into equity securities of the
Company for its own account or for the account of others, then the Company will
promptly give the Investors written notice thereof and will use its best efforts
to include in such registration all or any part of the Registrable Securities
requested by such Investors to be included therein (excluding any Registrable
Securities previously included in a Registration Statement). This requirement
does not apply to Company registrations on Form S-4 or S-8 or their equivalents
(relating to equity securities to be issued in connection with an acquisition of
any entity or business or equity securities issuable in connection with stock
option or other employee benefit plans) or to registration statements that would
otherwise not permit
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(under applicable SEC rules) the registration of resales of previously issued
securities. Each Investor must give its request for registration under this
paragraph to the Company in writing within 15 days after receipt from the
Company of notice of such pending registration. If the registration for which
the Company gives notice is a public offering involving an underwriting, the
Company will so advise the Investors as part of the above-described written
notice. In that event, if the managing underwriter(s) of the public offering
impose a limitation on the number of shares of Common Stock that may be included
in the Registration Statement because, in such underwriter(s)' judgment, such
limitation would be necessary to effect an orderly public distribution, then the
Company shall include in such registration on a pro rata basis: (i) the
securities the Company proposes to sell; (ii) the securities desired to be sold
pursuant to such Registration Statement by the stockholder or stockholders which
are requiring the Company, pursuant to a contractual registration right, to file
such Registration Statement; and (iii) the Registrable Securities requested by
the Investors to be included in such offering.
(b) No right to registration of Registrable Securities under this
Section 2.5 limits in any way the registration required under Section 2.1 above.
The obligations of the Company under this Section 2.5 expire upon the earliest
of (i) the effectiveness of the Registration Statement filed pursuant to Section
2.1 above with respect to the Registrable Securities or the respective portion
thereof, (ii) after the Company has afforded the opportunity for the Investors
to exercise registration rights under this Section 2.5 for two registrations
(provided, however, that any Investor that has had any Registrable Securities
excluded from any Registration Statement in accordance with this Section 2.5 may
include in any additional Registration Statement filed by the Company the
Registrable Securities so excluded), or (iii) expiration of the Registration
Period.
2.6 ELIGIBILITY TO USE FORM S-3. The Company represents and warrants
that, as of the date of this Agreement, it meets the requirements for the use of
Form S-3 for registration of the resale by the Investors of the Registrable
Securities, and it will use its reasonable best efforts to continue to meet such
requirements during the Registration Period.
ACTICLE III
ADDITIONAL OBLIGATIONS OF THE COMPANY
3.1 CONTINUED EFFECTIVENESS OF REGISTRATION STATEMENT Subject to the
limitations set forth in Section 3.6, the Company will use its best efforts to
keep the Registration Statement covering the Registrable Securities effective
under Rule 415 at all times during the Registration Period. In the event that
the number of shares available under a Registration Statement filed pursuant to
this Agreement is insufficient to cover all of the Registrable Securities
issued, the Company will (if permitted) amend the Registration Statement or file
a new Registration Statement (on the short form available therefor, if
applicable), or both, so as to cover all of the Registrable Securities. The
Company will file such amendment or new Registration Statement as soon as
practicable, but in no event later than 30 business days after the necessity
therefor arises. The Company will use its best efforts to cause such amendment
or new Registration Statement to become effective as soon as is practicable
after the filing thereof.
3.2 ACCURACY OF REGISTRATION STATEMENT. Assuming the accuracy of
information furnished by or on behalf of the Investors, any Registration
Statement (including any
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amendments or supplements thereto and prospectuses contained therein) filed by
the Company covering Registrable Securities will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein, or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading. The Company will promptly
prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to the Registration Statement and the prospectus
used in connection with the Registration Statement as may be necessary to permit
sales pursuant to the Registration Statement at all times during the
Registration Period (but subject to Section 3.6), and, during such period, will
comply with the provisions of the Securities Act with respect to the disposition
of all Registrable Securities of the Company covered by the Registration
Statement until the termination of the Registration Period, or if earlier, until
such time as all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof as set forth in the Registration Statement.
3.3 FURNISHING DOCUMENTATION. The Company will furnish to each Investor
whose Registrable Securities are included in a Registration Statement, and legal
counsel, if any, representing Investors holding at least a majority of the
Registrable Securities, (a) promptly after each document is filed with the SEC,
one copy of any Registration Statement filed pursuant to this Agreement and any
amendments thereto, each preliminary prospectus (if any) and final prospectus
and each amendment or supplement thereto; and (b) a number of copies of a
prospectus, including a preliminary prospectus (if any), and all amendments and
supplements thereto, and such other documents as the Investor may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by the Investor. The Company will notify by facsimile each Investor whose
Registrable Securities are included in any Registration Statement of the filing
and the effectiveness of the Registration Statement and any post-effective
amendment on the date of filing of the Registration Statement, effectiveness of
the Registration Statement or any post-effective amendment, as applicable.
3.4 ADDITIONAL OBLIGATIONS. The Company will use its reasonable best
efforts to (a) register and qualify the Registrable Securities covered by a
Registration Statement under such other securities or blue sky laws of such
jurisdictions as each Investor who holds (or has the right to hold) Registrable
Securities being offered reasonably requests, (b) prepare and file in those
jurisdictions any amendments (including post-effective amendments) and
supplements to such registrations and qualifications as may be necessary to
maintain their effectiveness during the Registration Period, (c) take any other
actions necessary to maintain such registrations and qualifications in effect at
all times during the Registration Period, and (d) take any other actions
reasonably necessary or advisable to qualify the Registrable Securities for sale
in such jurisdictions. Notwithstanding the foregoing, the Company is not
required, in connection with such obligations, to (i) qualify to do business in
any jurisdiction where it would not otherwise be required to qualify but for
this Section 3.4, (ii) subject itself to general taxation in any such
jurisdiction, (iii) file a general consent to service of process in any such
jurisdiction, (iv) provide any undertakings that cause material expense or
burden to the Company, or (v) make any change in its charter or bylaws, which in
each case the Company determines to be contrary to the best interests of the
Company and its stockholders.
3.5 UNDERWRITTEN OFFERINGS. The Investors may offer and sell the
Registrable Securities pursuant to a Registration Statement filed in accordance
with Section 2.1 in an
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underwritten offering in accordance with this Section 3.5. If the Investors who
hold a majority in interest of the Registrable Securities being offered in an
offering pursuant to a Registration Statement or any amendment or supplement
thereto under this Agreement select underwriters reasonably acceptable to the
Company for such offering, the Company will enter into and perform its
obligations under an underwriting agreement in usual and customary form
including, without limitation, customary indemnification and contribution
obligations, with the managing underwriter of such offering and will take all
other actions that such Investors reasonably request, including without
limitation using its best efforts to cause members of the management of the
Company to participate on a reasonable basis in customary "road show" activities
to the extent required by the underwriters with a view to maximizing the price
of the Registrable Securities being offered. In the event that any Investors
elect not to participate in such underwritten offering, the Registration
Statement covering all of the Registrable Securities shall contain appropriate
other plans of distribution reasonably satisfactory to the Investors electing
not to participate in such underwritten offering (including, without limitation,
the ability of nonparticipating Investors to sell from time to time and at any
time during the effectiveness of such Registration Statement). In the event the
Investors elect to offer and sell the Registrable Securities pursuant to a
Registration Statement filed in accordance with Section 2.1 in an underwritten
offering, the provisions of Sections 2.3 and 2.4 shall be inapplicable to such
Registration Statement.
3.6 SUSPENSION OF RESALE RIGHTS.
(a) The Company will notify (by facsimile) each Investor who holds
Registrable Securities being sold pursuant to a Registration Statement of the
happening of any event of which the Company has knowledge as a result of which
the prospectus included in the Registration Statement as then in effect includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
Company will make such notification on the same date as the Company becomes
aware of the event (but in no event will the Company disclose to any Investor
any of the facts or circumstances regarding the event), will promptly prepare a
supplement or amendment to the Registration Statement to correct such untrue
statement or omission, and will deliver a number of copies of such supplement or
amendment to each Investor as such Investor may reasonably request.
(b) Notwithstanding the obligations under Section 3.6(a), if in the
good faith judgment of the Company, following consultation with legal counsel,
it would be detrimental to the Company and its stockholders for resales of
Registrable Securities to be made pursuant to the Registration Statement due to
(i) the existence of a material development or potential material development
involving the Company which the Company would be obligated to disclose in the
Registration Statement, which disclosure would be premature or otherwise
inadvisable at such time or would have a Material Adverse Effect upon the
Company and its stockholders, or (ii) in the good faith judgment of the Company,
it would adversely affect or require premature disclosure of the filing of a
Company-initiated registration of any class of its equity securities, the
Company will have the right to suspend the use of the Registration Statement for
a period of not more than fifteen days; PROVIDED, HOWEVER, that the Company may
so defer or suspend the use of the Registration Statement no more than 60 days
in a calendar year; and PROVIDED, FURTHER, that, after deferring or suspending
the use of the Registration Statement, the Company may not
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again defer or suspend the use of the Registration Statement until a period of
thirty days has elapsed after resumption of the use of the Registration
Statement.
(c) Subject to the Company's rights under this Section 3, the
Company will use its best efforts to prevent the issuance of any stop order or
other suspension of effectiveness of a Registration Statement and, if such an
order is issued, will use its best efforts to obtain the withdrawal of such
order at the earliest possible time (including in each case by amending or
supplementing such Registration Statement) and the Company will notify each
Investor that holds Registrable Securities being sold (or, in the event of an
underwritten offering, the managing underwriters) of the issuance of such order
on the date thereof and the resolution thereof (and if such Registration
Statement is supplemented or amended, deliver such number of copies of such
supplement or amendment to each Investor as such Investor may reasonably
request).
d) Notwithstanding anything to the contrary contained herein or in
the Purchase Agreement, if the use of the Registration Statement is suspended by
the Company, the Company will give notice of the suspension to all Investors
whose securities are covered by the Registration Statement on the date of such
suspension, and will notify each such Investor on the date that the use of the
Registration Statement may be resumed.
3.7 REVIEW BY THE INVESTORS. The Company will permit a single firm of
legal counsel, designated by the Investors who hold a majority in interest of
the Registrable Securities being sold pursuant to a Registration Statement, to
review the Registration Statement and all amendments and supplements thereto (as
well as all requests for acceleration or effectiveness thereof) a reasonable
period of time prior to their filing with the SEC, and will not file any
document in a form to which such counsel reasonably objects, unless otherwise
required by law in the opinion of the Company's counsel; provided that the time
periods set forth in Section 2.2 shall be tolled to the extent that such legal
counsel does not deliver its final comments relating to such Registration
Statement to the Company within 3 business days after receipt of such
Registration Statement. The sections of any such Registration Statement
including information with respect to the Investors, the Investors' beneficial
ownership of securities of the Company or the Investors' intended method of
disposition of Registrable Securities must conform to the information provided
to the Company by each of the Investors.
3.8 COMFORT LETTER; LEGAL OPINION. At the request of the Investors who
hold a majority in interest of the Registrable Securities being sold pursuant to
a Registration Statement, and on the date that Registrable Securities are
delivered to an underwriter for sale in connection with the Registration
Statement, the Company will furnish to the Investors and the underwriters (i) a
letter, dated such date, from the Company's independent certified public
accountants, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters; and (ii) an opinion, dated such date, from
counsel representing the Company for purposes of the Registration Statement, in
form and substance as is customarily given in an underwritten public offering,
in each case addressed to the underwriters and such Investors.
3.9 DUE DILIGENCE; CONFIDENTIALITY.
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(a) The Company will make available upon reasonable advance notice
during normal business hours for inspection by any Investor who holds at least
20% of the Common Shares initially purchased by that Investor and whose
Registrable Securities are being sold pursuant to a Registration Statement, any
underwriter participating in any disposition pursuant to the Registration
Statement, and any attorney, accountant or other agent retained by any such
Investor or underwriter (collectively, the "INSPECTORS"), all pertinent
financial and other records, pertinent corporate documents and properties of the
Company (collectively, the "RECORDS"), as reasonably necessary to enable each
Inspector to exercise its due diligence responsibility in connection with or
related to the contemplated offering. The Company will cause its officers,
directors and employees to supply all information that any Inspector may
reasonably request for purposes of performing such due diligence.
(b) Each Inspector will hold in confidence, use only in connection
with the contemplated offering, and will not make any disclosure (except to an
Investor) of, all Records and other information that the Company determines in
good faith to be confidential, and of which determination the Inspectors are so
notified, unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in any Registration Statement, (ii) the
release of such Records is ordered pursuant to a subpoena or other order from a
court or government body of competent jurisdiction, (iii) the information in
such Records has been made generally available to the public other than by
disclosure in violation of this or any other agreement (to the knowledge of the
relevant Inspector), (iv) the Records or other information was developed
independently by an Inspector without breach of this Agreement, (v) the
information was known to the Inspector before receipt of such information from
the Company, or (vi) the information was disclosed to the Inspector by a third
party not under an obligation of confidentiality. The Company is not required to
disclose any confidential information in the Records to any Inspector unless and
until such Inspector has entered into a confidentiality agreement (in form and
substance satisfactory to the Company) with the Company with respect thereto,
substantially in the form of this Section 3.9. Each Investor will, upon learning
that disclosure of Records containing confidential information is sought in or
by a court or governmental body of competent jurisdiction or through other
means, give prompt notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure of, or to obtain
a protective order for, the Records deemed confidential. Nothing herein will be
deemed to limit the Investor's ability to sell Registrable Securities in a
manner that is otherwise consistent with applicable laws and regulations.
(c) The Company will hold in confidence, and will not make any
disclosure of, information concerning an Investor provided to the Company under
this Agreement unless (i) disclosure of such information is necessary to comply
with federal or state securities laws, or any exchange listing or similar rules
and regulations, (ii) the disclosure of such information is necessary to avoid
or correct a misstatement or omission in any Registration Statement, (iii) the
release of such information is ordered pursuant to a subpoena or other order
from a court or governmental body of competent jurisdiction, (iv) such
information has been made generally available to the public other than by
disclosure in violation of this Agreement or any other agreement, (v) the
information was disclosed to the Company by a third party not under an
obligation of confidentiality or (vi) such Investor consents to the form and
content of any such disclosure. If the Company learns that disclosure of such
information concerning an Investor is sought in or by a court or governmental
body of competent jurisdiction or through other means,
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the Company will give prompt notice to such Investor prior to making such
disclosure and allow such Investor, at its expense, to undertake appropriate
action to prevent disclosure of, or to obtain a protective order for, such
information.
3.10 LISTING. The Company shall use reasonable best efforts to (i)
maintain the listing of the Registrable Securities on the NYSE or such other
national securities exchange on which securities of the same class or series
issued by the Company as the Registrable Securities are then listed, or (ii) to
the extent the securities of the same class or series are not then listed on the
NYSE or such other national securities exchange, secure the designation and
quotation of all of the Registrable Securities covered by each Registration
Statement on Nasdaq. In addition, the Company shall deliver to the NYSE copies
of prospectuses that constitute a part of a Registration Statement pursuant to
which Registrable Securities are being offered, in satisfaction of Rule 153
under the Securities Act.
3.11 SHARE CERTIFICATES. The Company will cooperate with the Investors
who hold Registrable Securities being sold and with the managing underwriter(s),
if any, to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing Registrable Securities to be
offered pursuant to a Registration Statement and will enable such certificates
to be in such denominations or amounts as the case may be, and registered in
such names as the Investors or the managing underwriter(s), if any, may
reasonably request, all in accordance with Article V of the Purchase Agreement.
3.12 PLAN OF DISTRIBUTION. At the request of the Investors holding a
majority in interest of the Registrable Securities registered pursuant to a
Registration Statement, the Company will promptly prepare and file with the SEC
such amendments (including post-effective amendments) and supplements to the
Registration Statement, and the prospectus used in connection with the
Registration Statement, as may be necessary in order to change the plan of
distribution set forth in such Registration Statement.
3.13 SECURITIES LAWS COMPLIANCE. The Company will comply with all
applicable laws related to any Registration Statement relating to the sale of
Registrable Securities and to offering and sale of securities and with all
applicable rules and regulations of governmental authorities in connection
therewith (including, without limitation, the Securities Act, the Exchange Act
and the rules and regulations promulgated by the SEC).
3.14 FURTHER ASSURANCES. The Company will take all other reasonable
actions as any Investor or the underwriters, if any, may reasonably request to
expedite and facilitate disposition by such Investor of the Registrable
Securities pursuant to the Registration Statement.
3.15 NO ADDITIONAL SELLING SHAREHOLDERS. The Company will not, and will
not agree to, allow the holders of any securities of the Company to include any
of their securities in any Registration Statement under Section 2.1 hereof, or
any amendment or supplement thereto under Section 3.2 hereof, without the
consent of the holders of a majority in interest of the Registrable Securities.
ARTICLE IV
OBLIGATIONS OF THE INVESTORS
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4.1 INVESTOR INFORMATION. As a condition to the obligations of the
Company to complete any registration pursuant to this Agreement with respect to
the Registrable Securities of each Investor, such Investor will furnish to the
Company such information regarding itself, the Registrable Securities held by it
and the intended methods of disposition of the Registrable Securities held by it
as is reasonably required by the Company to effect the registration of the
Registrable Securities. At least ten days prior to the first anticipated filing
date of a Registration Statement for any registration under this Agreement, the
Company will notify each Investor of the information the Company requires from
that Investor whether or not such Investor has elected to have any of its
Registrable Securities included in the Registration Statement. If, within three
days prior to the anticipated filing date, the Company has not received the
requested information from an Investor, then the Company may file the
Registration Statement without including Registrable Securities of that
Investor.
4.2 FURTHER ASSURANCES. Each Investor will cooperate with the Company,
as reasonably requested by the Company, in connection with the preparation and
filing of any Registration Statement hereunder, unless such Investor has
notified the Company in writing of such Investor's irrevocable election to
exclude all of such Investor's Registrable Securities from such Registration
Statement.
4.3 SUSPENSION OF SALES. Upon receipt of any notice from the Company
under Section 3.6, each Investor will immediately discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering such
Registrable Securities until (i) it receives copies of a supplemented or amended
prospectus contemplated by Section 3.6(a) or (ii) the Company advises the
Investor that a suspension of sales under Section 3.6(b) has terminated. If so
directed by the Company, each Investor will deliver to the Company (at the
expense of the Company) or destroy (and deliver to the Company a certificate of
destruction) all copies in the Investor's possession (other than a limited
number of file copies) of the prospectus covering such Registrable Securities
that is current at the time of receipt of such notice.
4.4 UNDERWRITTEN OFFERINGS.
(a) If Investors holding a majority in interest of the Registrable
Securities being registered (with the approval of a majority in interest of the
Initial Investors) determine to engage the services of an underwriter, each such
Investor will enter into and perform such Investor's obligations under an
underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
managing underwriter of such offering, and will take such other actions as are
reasonably required in order to expedite or facilitate the disposition of the
Registrable Securities, unless such Investor subsequently notifies the Company
in writing of such Investor's election not to participate in the underwriting.
Investors determining not to participate in the underwritten offering shall
nonetheless have the right to include all of their Registrable Securities in the
Registration Statement as set forth in Section 3.5.
10
(b) Without limiting any Investor's rights under Section 2.1
hereof, no Investor may participate in any underwritten distribution hereunder
unless such Investor (a) agrees to sell such Investor's Registrable Securities
on the basis provided in any underwriting arrangements approved by the Investors
entitled hereunder to approve such arrangements, (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements, and (c) agrees to pay its pro rata share of all underwriting
discounts and commissions and other fees and expenses of investment bankers and
any manager or managers of such underwriting, and legal expenses of the
underwriter, applicable with respect to its Registrable Securities, in each case
to the extent not payable by the Company under the terms of this Agreement.
ARTICLE V
EXPENSES OF REGISTRATION
The Company will bear all reasonable expenses, other than underwriting
discounts and commissions, and transfer taxes, if any, incurred in connection
with registrations, filings or qualifications pursuant to Articles II and III of
this Agreement, including, without limitation, all registration, listing and
qualifications fees, printers and accounting fees, the fees and disbursements of
counsel for the Company, and the reasonable fees and disbursements of one firm
of legal counsel selected by the Initial Investors pursuant to Section 3.7
hereof (not to exceed $5,000). The Investors shall reimburse the Company for any
out-of-pocket expenses the Company incurs in an underwritten offering initiated
by the Investors.
ARTICLE VI
INDEMNIFICATION
In the event that any Registrable Securities are included in a
Registration Statement under this Agreement:
6.1 INDEMNIFICATION OF THE INVESTORS AND ANY UNDERWRITERS. To the
extent permitted by law, the Company will indemnify and hold harmless each
Investor that holds such Registrable Securities, any underwriter (as defined in
the Securities Act) for the Investors, any directors or officers of such
Investor or such underwriter and any person who controls such Investor or such
underwriter within the meaning of the Securities Act or the Exchange Act (each,
an "INDEMNIFIED PERSON") against any losses, claims, damages, expenses or
liabilities (joint or several) (collectively, and together with actions,
proceedings or inquiries by any regulatory or self-regulatory organization,
whether commenced or threatened in respect thereof, "CLAIMS") to which any of
them become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such Claims arise out of or are based upon any of the following
statements, omissions or violations in a Registration Statement filed pursuant
to this Agreement, any post-effective amendment thereof or any prospectus
included therein: (a) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any post-effective
amendment thereof or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, (b) any untrue statement or alleged untrue statement of a material
fact contained in the prospectus related to the Registration Statement (as it
may be
11
amended or supplemented) or the omission or alleged omission to state therein
any material fact necessary to make the statements made therein, in light of the
circumstances under which the statements therein were made, not misleading, or
(c) any violation or alleged violation by the Company of the Securities Act, the
Exchange Act or any other law related to the Registration Statement, including
without limitation any state securities law or any rule or regulation thereunder
(the matters in the foregoing clauses (a) through (c) being, collectively,
"VIOLATIONS"). Subject to the restrictions set forth in Section 6.3 with respect
to the number of legal counsel, the Company will reimburse the Investors and
each such underwriter or controlling person and each such other Indemnified
Person, promptly as such expenses are incurred and are due and payable, for any
legal fees or other reasonable expenses incurred by them in connection with
investigating or defending any Claim. Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this Section 6.1:
(i) does not apply to Claims arising out of or based upon a Violation that
occurs in reliance upon and in conformity with information furnished in writing
to the Company by an Indemnified Person expressly for use in connection with the
preparation of the Registration Statement or any such amendment thereof or
supplement thereto, if such prospectus was timely made available by the Company
pursuant to Section 3.3 hereof; (ii) does not apply to a Claim arising out of or
based on any failure by any Indemnified Person to comply with prospectus
delivery requirements (or the Securities Act, the Exchange Act or any other law
or legal requirement applicable to them) or any covenant or agreement contained
in the Purchase Agreement or this Agreement; and (iii) does not apply to amounts
paid in settlement of any Claim if such settlement is made without the prior
written consent of the Company, which consent will not be unreasonably withheld.
This indemnity obligation will remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Persons and will survive
the transfer of the Registrable Securities by the Investors under Article IX of
this Agreement.
6.2 INDEMNIFICATION OF THE COMPANY AND CERTAIN STOCKHOLDERS. In
connection with any Registration Statement in which an Investor is
participating, each such Investor will indemnify and hold harmless, severally
and not jointly, to the same extent and in the same manner set forth in Section
6.1 above, the Company, each of its directors, each of its officers who signs
the Registration Statement, each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act, and any other stockholder
selling securities pursuant to the Registration Statement and any of its
directors and officers and any person who controls such stockholder within the
meaning of the Securities Act or the Exchange Act (each an "INDEMNIFIED PERSON")
against any Claim to which any of them may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such Claim arises out of or is
based upon any of the following: (a) any matter of the type referred to clause
(a) or (b) in Section 6.1 above in each case to the extent (and only to the
extent) that such violation occurs in reliance upon and in conformity with
written information furnished to the Company by such Investor expressly for use
in connection with such Registration Statement or (b) any failure by such
Investor to comply with prospectus delivery requirements (or the Securities Act,
the Exchange Act or any other law or legal requirement applicable to sales under
the Registration Statement) or any covenant or agreement contained in the
Purchase Agreement or this Agreement with respect to sales under the
Registration Statement. Subject to the restrictions set forth in Section 6.3,
such Investor will promptly reimburse any legal or other expenses, promptly as
such expenses are incurred and due and payable, reasonably incurred by them in
connection with investigating or defending any such Claim. However, the
indemnity agreement contained in this Section 6.2
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does not apply to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of such Investor, which consent will
not be unreasonably withheld, and no Investor will be liable under this
Agreement (including this Section 6.2 and Article VII) for the amount of any
Claim that exceeds the net proceeds actually received by such Investor as a
result of the sale of Registrable Securities pursuant to such Registration
Statement. This indemnity will remain in full force and effect regardless of any
investigation made by or on behalf of an Indemnified Party and will survive the
transfer of the Registrable Securities by the Investors under Article IX of this
Agreement. This indemnity will not be available from any Initial Investor that
is not permitted to provide such indemnity under the terms of its governing
agreements as in effect on the date hereof.
6.3 NOTIFICATION AND OTHER INDEMNIFICATION PROCEDURES. Promptly after
receipt by an Indemnified Person under this Article VI of notice of the
commencement of any action (including any governmental action), such Indemnified
Person will, if a Claim in respect thereof is to be made against any
indemnifying party under this Article VI, deliver to the indemnifying party a
written notice of the commencement thereof. The indemnifying party may
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly given notice, assume control of the
defense thereof with counsel mutually satisfactory to the indemnifying parties
and the Indemnified Person. In that case, the indemnifying party will diligently
pursue such defense. If, in the reasonable opinion of counsel retained by the
indemnifying party, the representation by such counsel of the Indemnified Person
and the indemnifying party would be inappropriate due to actual or potential
conflicts of interest between the Indemnified Person and any other party
represented by such counsel in such proceeding or the actual or potential
defendants in, or targets of, any such action including the Indemnified Person
and such Indemnified Person reasonably determines that there may be legal
defenses available to such Indemnified Person that are different from or in
addition to those available to the indemnifying party, then the Indemnified
Person is entitled to assume such defense and may retain its own counsel, with
the fees and expenses to be paid by the indemnifying party (subject to the
restrictions on settlement under Section 6.1 or 6.2, as applicable). The Company
will pay for only one separate legal counsel for the Investors collectively, and
such legal counsel will be selected by the Investors holding a majority in
interest of the Registrable Securities. The failure to deliver written notice to
the indemnifying party within a reasonable time of the commencement of any such
action does not relieve an indemnifying party of any liability to an Indemnified
Person under this Article VI, except to the extent that the indemnifying party
is prejudiced in its ability to defend such action. The indemnification required
by this Article VI will be made by periodic payments of the amount thereof
during the course of the investigation or defense, as such expense, loss, damage
or liability is incurred and is due and payable.
ARTICLE VII
CONTRIBUTION
To the extent that any indemnification provided for herein is
prohibited or limited by law, the indemnifying party will make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under Article VI to the fullest extent permitted by law. However, (a) no
contribution will be made under circumstances where the maker would not have
been liable for indemnification under the fault standards set forth in Article
VI, (b) no seller of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of
13
Section 11(f) of the Securities Act) will be entitled to contribution from any
seller of Registrable Securities who was not guilty of such fraudulent
misrepresentation, and (c) contribution (together with any indemnification or
other obligations under this Agreement) by any seller of Registrable Securities
will be limited in amount to the net amount of proceeds received by such seller
from the sale of such Registrable Securities.
ARTICLE VIII
EXCHANGE ACT REPORTING
In order to make available to the Investors the benefits of Rule 144 or
any similar rule or regulation of the SEC that may at any time permit the
Investors to sell securities of the Company to the public without registration,
the Company will, until the end of the Registration Period:
(a) File with the SEC in a timely manner, and make and keep available,
all reports and other documents required of the Company under the Securities Act
and the Exchange Act so long as the Company remains subject to such requirements
(it being understood that nothing herein limits the Company's obligations under
Section 4.3 of the Purchase Agreement) and the filing and availability of such
reports and other documents is required for the applicable provisions of Rule
144; and
(b) Furnish to each Investor, so long as such Investor holds
Registrable Securities, promptly upon request, (i) a written statement by the
Company that it has complied with the reporting requirements of the Securities
Act and the Exchange Act, (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents filed by the Company
with the SEC and (iii) such other information as may be reasonably requested to
permit the Investors to sell such securities pursuant to Rule 144 without
registration.
ARTICLE IX
ASSIGNMENT OF REGISTRATION RIGHTS
The rights of the Investors hereunder, including the right to have the
Company register Registrable Securities pursuant to this Agreement, shall be
assignable by each Investor to any permitted transferee or assignee of the
Registrable Securities (i) in the case of either an assignment of Registrable
Securities to an affiliate of such Investor or an assignment of all Registrable
Securities held by such Investor without the consent of the Company and (ii) in
the case of an assignment of less than all of the Registrable Securities held by
such Investor with the consent of the Company (which consent shall not be
unreasonably withheld), if (a) the Investor agrees in writing with the
transferee or assignee to assign such rights, and a copy of such agreement is
furnished to the Company within a reasonable time after such assignment, (b) the
Company is, within a reasonable time after such transfer or assignment,
furnished with written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are
being transferred or assigned, (c) such transfer or assignment was not made
under the Registration Statement or Rule 144, (d) at or before the time the
Company received the written notice contemplated by clause (b) of this sentence,
the transferee or assignee agrees in writing with the Company to be bound by all
of the provisions contained herein, (e) such transfer is made in accordance with
the applicable requirements of the Purchase Agreement and (f) the transferee is
an "accredited investor" as that term is defined in Rule 501 of
14
Regulation D. Any transferee or assignee of an Investor under Article IX shall
be deemed an "Investor" for all purposes of this Agreement, and shall be
entitled to all rights of, and subject to all obligations (including
indemnification obligations) of, an Investor hereunder.
ARTICLE
AMENDMENT OF REGISTRATION RIGHTS
This Agreement may be amended and the obligations hereunder may be
waived (either generally or in a particular instance, and either retroactively
or prospectively) only with the written consent of the Company and of the
Investors who then hold a majority in interest of the Registrable Securities
(but not including any Investor who is not affected by such amendment or
waiver). Any amendment or waiver effected in accordance with this Article X is
binding upon each Investor and the Company. Notwithstanding the foregoing, no
amendment or waiver will retroactively affect any Investor without its consent,
or will prospectively adversely affect any Investor who no longer owns any
Registrable Securities without its consent. Neither Article II, Article VI nor
Article VII hereof may be amended or waived in a manner adverse to an Investor
without its consent.
ARTICLE XI
MISCELLANEOUS
11.1 CONFLICTING INSTRUCTIONS. A person or entity is deemed to be a
holder of Registrable Securities whenever such person or entity owns of record
such Registrable Securities. If the Company receives conflicting instructions,
notices or elections from two or more persons or entities with respect to the
same Registrable Securities, the Company will act upon the basis of
instructions, notice or election received from the registered owner of such
Registrable Securities.
11.2 NOTICES. Except as set forth in Sections 3.3 and 3.6 hereof, any
notices required or permitted to be given under the terms of this Agreement will
be given and deemed received as set forth in the Purchase Agreement.
11.3 WAIVER. Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, does not operate as a waiver thereof.
11.4 GOVERNING LAW. This Agreement will be governed by and interpreted
in accordance with the laws of the State of Illinois without regard to the
principles of conflict of laws. The parties hereto hereby submit to the
exclusive jurisdiction of the United States federal and state courts located in
the State of Illinois with respect to any dispute arising under this Agreement,
the agreements entered into in connection herewith or the transactions
contemplated hereby or thereby.
11.5 SEVERABILITY. If any provision of this Agreement is invalid or
unenforceable under any applicable statute or rule of law, then such provision
will be deemed modified in order to conform with such statute or rule of law.
Any provision hereof that may prove invalid or unenforceable under any law will
not affect the validity or enforceability of any other provision hereof.
16
11.6 ENTIRE AGREEMENT. This Agreement and the Purchase Agreement
(including all schedules and exhibits thereto) constitute the entire agreement
among the parties hereto with respect to the subject matter hereof and thereof.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein or therein. This Agreement supersedes all
prior agreements and understandings among the parties hereto with respect to the
subject matter hereof.
11.7 SUCCESSORS AND ASSIGNS. Subject to the requirements of Article IX
hereof, this Agreement inures to the benefit of and is binding upon the
successors and assigns of each of the parties hereto. Notwithstanding anything
to the contrary herein, including, without limitation, Article IX, the rights of
an Investor hereunder are assignable to and exercisable by a bona fide pledgee
of the Registrable Securities in connection with an Investor's margin or
brokerage accounts.
11.8 USE OF PRONOUNS. All pronouns refer to the masculine, feminine or
neuter, singular or plural, as the context may require.
11.9 HEADINGS. The headings of this Agreement are for convenience of
reference only, are not part of this Agreement and do not affect its
interpretation.
11.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which is deemed an original but all of which constitute
one and the same agreement. This Agreement, once executed by a party, may be
delivered to the other party hereto by facsimile transmission, and facsimile
signatures are binding on the parties hereto.
11.11 FURTHER ASSURANCES. Each party will do and perform, or cause to
be done and performed, all such further acts and things, and will execute and
deliver all other agreements, certificates, instruments and documents, as
another party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
11.12 CONSENTS. All consents and other determinations to be made by the
Investors pursuant to this Agreement will be made by the Initial Investors or
the Investors holding a majority in interest of the Registrable Securities.
11.13 NO STRICT CONSTRUCTION. The language used in this Agreement is
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.
11.14 TERMINATION. Notwithstanding anything to the contrary herein, the
Company's obligations shall terminate as of the date which is five years from
the date hereof.
* * * *
16
IN WITNESS WHEREOF, the undersigned Investors and the Company have caused this
Agreement to be duly executed as of the date first above written.
COMPANY:
NAVISTAR INTERNATIONAL CORPORATION
By: /s/ XXXXXX X. XXXXX
----------------------------------
Name: X. X. Xxxxx
Title: V.P. & Treasurer
INVESTORS:
THE INTERNATIONAL TRUCK AND ENGINE
CORPORATION NON-CONTRIBUTORY RETIREMENT PLAN
TRUST
By: The Northern Trust Company
As: Trustee
By: /s/ XXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
THE INTERNATIONAL TRUCK AND ENGINE
CORPORATION RETIREMENT PLAN FOR SALARIED
EMPLOYEES TRUST
By: The Northern Trust Company
As: Trustee
By: /s/ XXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
THE INTERNATIONAL TRUCK AND ENGINE
CORPORATION RETIREE HEALTH BENEFIT TRUST
By: The Northern Trust Company
As: Trustee
By: /s/ XXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
